COLLISIONS AT SEA

WEDNESDAY, MAY 18, 1977

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COAST GUARD AND NAVIGATION

OF THE COMMITTEE ON MERCHANT MARINE AND FISHERIES,

Washington, D.C.

The subcommittee met, pursuant to notice, at 10:12 a.m., in room 1334 Longworth House Office Building, Hon. Mario Biaggi (chairman of the subcommittee) presiding.

Mr. BIAGGI. The meeting is called to order.

The Subcommittee on Coast Guard and Navigation is meeting this morning to consider H. R. 186, a bill to implement the Convention on the International Regulations for Preventing Collisions at Sea,

1972.

The new Convention which this bill would implement was signed in London on October 20, 1972, at the conclusion of a conference involving the active participation of 46 governments, including all of the major maritime nations. The Convention simplifies and updates the so-called International Rules of the Road, which were last revised in 1960. The Convention attempts to simplify and clarify existing rules and to incorporate certain changes in the rules brought about by changes in maritime needs.

A general summary of the bill is contained in each member's folder, along with a copy of the Convention which the bill would implement. Also included is a legal memorandum prepared by the subcommittee staff, detailing the need for implementing legislation to be enacted prior to July 15, 1977, in order to bring U.S. vessels into conformance with the International Rules entering into force on that date.

H.R. 186 is substantially identical to H.R. 5446, which was passed by the 94th Congress and pocket-vetoed by the President after adjournment of the Congress sine die. The basis of the President's objection was reflected in a White House release dated October 10, 1976. That release took special exception to a provision in the bill relating to the manner in which subsequent proposed amendments to the regulations should be handled.

In connection with the Presidential proposal that the Congress should give advance approval to such amendments, the bill did so, with the attached condition that such approval could in effect be withdrawn by a resolution of either House, as to a particular proposal. The disapproval resolution would require the President to register an objection to the pending amendment, thereby, pursuant to the terms of the Convention, preventing its application to the United States.

The President considered this provision as incompatible with constitutional processes, pointing to those provisions of the Constitution which provide that, for an action of the Congress to have the force and effect of law, it must be presented to the President and, if disapproved, repassed by a two-thirds majority of both Houses. We will later today be examining the correctness of the President's position. In the bill before us today, the provision for a resolution of disapproval by either House has been changed to require a concurrent resolution adhered to by both. This change does not alter the basic problem before us but makes it less easy for the Congress to prevent the implementation of a particular rules amendment, since under the new provisions, both Houses must agree that the proposal is unacceptable.

It should be noted that the President in his October 10 release closed that release with the statement "I strongly urge the 95th Congress to pass legislation early next year that will be consistent with our Constitution, so that the United States can implement the Convention before it enters into force." This position reflecting the need for implementing legislation had been earlier enunciated by Adm. Owen W. Siler, Commandant of the U.S. Coast Guard, in his appearance before the Senate Committee on Foreign Relations on October 22, 1975. In that testimony, he clearly reflected the administration's intention that, before the Convention could be effected for the United States, not only must it have been ratified, but implementing legislation must have been passed.

Contrary to the view expressed by Admiral Siler in his testimony before the Senate committee, and contrary to the view expressed by the President in his release of October 10, 1976, the President, on January 19, 1977, immediately before leaving office, issued an Executive order purporting to implement the Convention.

The hearings today are designed to examine the effectiveness of that Executive order, as contrasted to the enactment of implementing legislation. I ask unanimous consent that the President's memorandum of disapproval on H.R. 5446, his Executive Order 11964, and a copy of the legislative memorandum referred to previously may be inserted into the record at this point, along with a copy of the executive communication, bill, and departmental reports.

So ordered.

[The following was received for the record.]

MEMORANDUM OF DISAPPROVAL

THE WHITE HOUSE.

I am today withholding my signature from H.R. 5446, a bill to implement the United States obligations under the Convention on the International Regulations for Preventing Collisions at Sea, 1972.

The bill includes a provision which I believe to be unconstitutional. It would empower either the House of Representatives or the Senate to block amendments to the Convention's regulations merely by passing a resolution of disapproval. The provision is incompatible with the express provision in the Constitution that a resolution having the force and effect of law must be presented to the President and, if disapproved, repassed by a two-thirds majority in the Senate and the House of Representatives. It extends to the Congress the power to prohibit specific transactions authorized by law without changing the law-and without following the constitutional process such a change would require. Moreover, it would involve the Congress directly in the performance of Executive functions in disregard of the fundamental principle of separation of powers.

I believe that this procedure is contrary to the Constitution, and that my approval of it would threaten an erosion of the constitutional powers and responsi

bilities of the President. I have already directed the Attorney General to become a party plaintiff in a lawsuit challenging the constitutionality of a similar provision in the Federal Election Campaign Act.

In addition, this provision would allow the House of Representatives to block adoption of what is essentially an amendment to a treaty, a responsibility which is reserved by the Constitution to the Senate.

This legislation would forge impermissible shackles on the President's ability to carry out the laws and conduct the foreign relations of the United States. The President cannot function effectively in dometic matters, and speak for the nation authoritatively, in foreign affairs, if his decisions under authority previously conferred can be reversed by a bare majority of one house of the Congress.

The Convention-which has already been approved by the Senate-makes important changes in the international rules for safe navigation. It will enter into force in July of 1977. The United States should become a party to it. If the United States does not implement the Convention before it enters into force, there will be major differences between the navigational rules followed by U.S. ships and by the ships of many other countries. These differences will increase the danger of collisions at sea and create hazards to life and property at sea.

I strongly urge the 95th Congress to pass legislation early next year that will be consistent with our Constitution, so that the United States can implement the Convention before it enters into force.

GERALD R. FORD.

IMPLEMENTATION OF THE CONVENTION ON THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972, Executive ORDER 11964, JANUARY 19, 1977

By virtue of the authority vested in me by the Constitution and statutes of the United States of America, including Section 301 of Title 3 of the United States Code, and as President of the United States of America and Commander-in-Chief of the Armed Forces, in order to provide for the coming into force on July 15, 1977, of the Convention on the International Regulations for Preventing Collisions at Sea, 1972 (Senate Executive W. 93d Cong., 1st Sess.), it is hereby ordered as follows:

SECTION 1. (a) With respect to vessels of special construction or purpose, the Secretary of the Navy, for vessels of the Navy, and the Secretary of the Department in which the Coast Guard is operating, for all other vessels, shall determine and certify, in accord with Rule I of the International Regulations for Preventing Collisions at Sea, 1972, hereinafter referred to as the International Regulations, as to which such vessels cannot comply fully with the provisions of any of the International Regulations with respect to the number, positions, range or arc of visibility of lights or shapes, as well as to the disposition and characteristics of sound-signalling appliances, without interfering with the special function of the

vessel.

(b) With respect to vessels for which a certification is issued, the Secretary issuing the certification shall certify as to such other provisions which are the closest possible compliance by that vessel with the International Regulations. (c) Notice of any certification issued shall be published in the FEDERAL REGISTER.

SEC. 2. The Secretary of the Navy is authorized to promulgate special rules with respect to additional station or signal lights or whistle signals for ships of war or vessels proceeding under convoy, and the Secretary of the Department in which the Coast Guard is operating is authorized, to the extent permitted by law, including the provisions of Title 14 of the United States Code, to promulgate special rules with respect to additional station or signal lights for fishing vessels engaged in fishing as a fleet. In accord with Rule I of the International Regulations, the additional station or signal lights or whistle signals contained in the special rules shall be, as far as possible, such as they cannot be mistaken for any light or signal authorized by the International Regulations. Notice of such special rules for fishing vessels shall be published in the FEDERAL REGISTER.

SEC. 3. The Secretary of the Navy, for vessels of the Navy, and the Secretary of the Department in which the Coast Guard is operating, for all other vessels, are authorized to exempt, in accord with Rule 38 of the International Regulations, any vessel or class of vessels, the keel of which is laid, or which is at a corresponding stage of construction, before July 15, 1977, from full compliance with the International Regulations, provided that such vessel or class of vessels complies with the requirements of the International Regulations for Preventing Collisions

at Sea, 1960. Notice of any exemption granted shall be published in the FEDERAL REGISTER.

SEC. 4. The Secretary of the Department in which the Coast Guard is operating is authorized, to the extent permitted by law, to promulgate such rules and regulations that are necessary to implement the provisions of the Convention and International Regulations. He shall cause to be published in the FEDERAL REGISTER any implementing regulations or interpretive rulings promulgated pursuant to this Order, and shall promptly publish in the FEDERAL REGISTER the full text of the International Regulations.

The WHITE HOUSE, January 19, 1977.

GERALD R. FORD.

[FR Doc. 77-2396 Filed 1-21-77; 10:40 am]

STATEMENT OF THE PROBLEM

The Convention on the International Regulations for Preventing Collision at Sea (Collision Regulation Convention) was signed on behalf of the United States in London on October 20, 1972. It was rectified by Process-Verbal on December 1, 1973. On October, 1975, the Subcommittee gave its advice and consent to ratification in Senate Resolution 18806. It was accepted by the President without a message on December 12, 1975. The United States deposited its notice of ratification with the Inter-Governmental Maritime Consultative Organization (IMCO) on November 23, 1976. The Convention, modifying the 1960 Convention on the same subject, enters into force on July 15, 1977, following ratification by the requisite number of nations.

In the 94th Congress, H.R. 5446, implementing collision rules, was passed into law but vetoed by President Ford. His reasons centered in the inclusion in the bill of a legislative veto by simple resolution of either house of subsequent technical amendments to be negotiated by the Executive. On January 19, 1977, President Ford issued a proclamation directing the Navy Department and the Coast Guard to promulgate rules and regulations to implement the Convention and make its provisions applicable under domestic law to U.S. citizens. On January 20, 1977, in an Executive Communication from the Secretary of the Transportation to the Speaker of the House, a bill proposing to implement the collision rules was forwarded to the Congress for consideration. In an Executive Communication of May 6, 1977, the Carter Administration, through the General Counsel of the Transportation Department, indicated its support for such implementing legislation.

H.R. 186 was introduced in the 95th Congress for the purpose of implementing the collision regulations domestically before the Convention enters into force later this year. The one-house legislative veto has been modified to provide for a concurrent resolution of both houses to block the entry into force for the U.S. of subsequent technical amendments. The questions thus posed are:

(1) Is the Convention as drafted a self-executing treaty such that the Presidential proclamation, in the absence of implementing legislation, is sufficient to give the Convention the force and effect of law for domestic purposes in the United States?

(2) If the treaty is self-executing, what effect does the proclamation of its implementation have upon existing law; i.e., P.L. 88-131, the implementing legislation for the International Collision Regulations of 1960?

I. Is the Convention sub judice self-executing?

A. Executing v. Self-Executing Treaties:

An executory treaty is one in which the terms of the stipulations (covenants) import a contract when either of these parties engages to perform a particular act. Such a treaty addresses itself to the political department of Government, not the judicial; and the legislator must execute the contract before it can become a rule for the Court. On the other hand, a self-executing treaty is one that operates of itself without the aid of legislation. It is the equivalent of an Act of Congress, and, insofar as it effects individual rights, it is a part of the municipal law of the country. 74 Am Jur 2d Treaties.

The leading exposition on the subject of self-executing versus executory treaties in U.S. jurisprudence is Chief Justice Marshall's opinion in the case of Foster and Elam v. Neilson 27 U.S. 253 (1829). This case, as have many subsequent decisions on this issue dealt with adjudication of property rights between competing claimants under treaties enacted either annexing or purchasing land from the sovereign governments of England, France, and Spain.

Chief Justice Marshall opined that:

"A treaty is by nature a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially as far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respected parties to the instrument." 27 U.S. at 314.

The essence of the line of cases emanating from Foster is the notion that selfexecuting treaties bind nations signatory and require no further action to carry out their provisions, internationally and domestically. These treaties then become the supreme law of the land on a par with statutes under municipal law. In this sense, they affect the rights and liberties and status of U.S. citizens. In Chief Justice Marshall's words: "A treaty is the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of a legislature, when it operates of itself without the aid of any legislative position." id

A treaty is the law of the land as an Act of Congress, whenever its provisions provide a rule by which the rights of private citizens or subjects may be determined. Head Money Cases 112 U.S. 580, 598-9 (1884). In this sense a self-executing treaty may be regarded as a legislative act (even though it is without implementing legislation) when it operates of itself without the aid of legislative provisions. U.S. v. Forty-three Gallons of Whiskey 93 U.S. 188 (1876).

In determining whether a treaty is self-executing, courts must look to the intent of the signatory parties as manifested by the language of the instrument. Sei Fujii v. Statr 38 Čal 2d 718 (1945). And in order to have the force and effect of a statute without implementing legislation, it must appear that the framers of the treaty intended to prescribe a rule that, standing alone, would be enforceable in the courts. id

The Collision Regulations Convention requires under Article I that parties to it "undertake to give effect to the Rules and other Annexes of it." The Rules apply to conduct of vessels in international navigation, requirements to display lights and shapes while so operating, and to give sound and light signals while maneuvering in all instances. A comparison of the provisions of the new regulations with the old collision regulations of 1960, as implemented by P.L. 88–131, demonstrates the substantial changes in requirements leading to altered responsibilities being placed upon private and public vessels required to conform to the new rules. House Report No. 94–973, 94th Congress, Second Session, March 29, 1976.

It is not the policy of the United States to require its citizens to conform to prescribed rules of international law and to enforce such conduct without specifying them under municipal law and providing civil and criminal sanctions for noncompliance. Adherence to principles of fundamental due process under the Federal Constitution dictate the necessity for implementing legislation in order to mandate adherence to detailed operating requirements and procedures. The necessity for issuance of rules and regulations by implementing authority, such as the Navy, Coast Guard, as directed in the Executive Order 11964 of January 19, 1977, provides evidence of the executory nature of the Convention as signed and ratified.

An analogous situation exists in the area of international civil aviation. The Federal Aviation Administration Act of 1958 requires adherence by U.S. citizens to international air traffic rules as adopted and promulgated. These rules are made applicable to U.S. citizens by virtue of P.L. 85-726, codified at 49 U.S.C. 1348(c). Thereafter, amendments to these rules, in order to be binding upon U.S. citizens, after proper notice and hearing requirements are met, are promulgated by FAA regulation.

The Collision Regulations Convention obligated parties signatory to undertake and implement the Convention as signed and ratified. In order to require compliance by U.S. citizens and enforcement by the Coast Guard, implementing legislation is necessary in order to implement the terms of the Convention under municipal law.

II. If the treaty is self-executing alternatively, what effect does it have on existing law?

A. By the Constitution of the United States, a treaty and a statute are placed on the same footing, and if the two are unconnected, the one last in date will control, provided the stipulation of the treaty on the subject is self-executing. Whitney v. Robertson 124 U.S. 190 (1887). A treaty may supersede a prior Act of Congress, and an Act of Congress may supersede a prior treaty. The Cherokee Tobacco 78 U.S. 616 (1870). A subsequently ratified treaty may clearly supersede a prior Act of Congress. Thomas v. Gay 169 U.S. 264 (1897).