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.[to testify]concerning Canadian views on similar proposals to increase unilaterally the diversion, in both extreme and average water level periods, and have noted Canada's strong opposition. Although we have not admitted the validity of Canadian legal arguments based on the complex of agreements between the two governments governing the utilization of the waters of the Great Lakes, it is nonetheless clear that Canada does have legitimate rights and interests in the shared waters of the Great Lakes System.
[A] recent report of the International Joint Commission [IJC] entitled, Further Regulation of the Great Lakes, recommends that a study be conducted of all diversions, present or proposed, into and out of the Great Lakes Basin. We are in the process of negotiating with Canada the responses of the two governments to this recommendation as well as to the other recommendations of the IJC.
It is possible that the IJC study and/or a demonstration program could change Canadian views regarding an increase in the Chicago Diversion; however, unilateral action on our part would be contrary to the spirit of cooperation which has developed since the signature of the Boundary Waters Treaty of 1909 and to U.S. interests.
I would ask that our views be taken into consideration in connection with your Subcommittee's deliberations on this legislation. The Department of State stands ready to assist you either by providing more information or by consulting with the Government of Canada at an early date, should you so desire.
Dept. of State File No. P76 0154-1981.
Tijuana River Flood Control
On September 28, 1976, the President signed into law "An Act To provide for acquisition of lands in connection with the international Tijuana River flood control project, and for other purposes" (P.L. 94425; 90 Stat. 1333; 22 USC 277d-33). It amends Public Law 89-640, approved October 10, 1966, which authorized the conclusion of an agreement between the United States and Mexico for the joint construction, operation, and maintenance of an international flood control project for the Tijuana River, in accordance with the provisions of the U.S.-Mexico treaty of February 3, 1944, relating to the utilization of waters of the Colorado and Tijuana Rivers and of the Rio Grande (TS 994; 59 Stat. 1219; 9 Bevans 1166). Under this authorization an agreement was concluded between the two countries (International Boundary and Water Commission Minute No. 225, dated June 19, 1967) providing for a channel in Mexico to be constructed at Mexican expense, and a channel in the United States at U.S. expense.
After the 1966 legislation was approved, the original construction plan was scrapped in favor of a modified U.S. project that was considered more environmentally sound and less oriented toward
urban development. The project would involve construction of a lessthan-mile-long concrete channel with north and south levees adjoining it, rather than the 5.5-mile long channel emptying into the Pacific Ocean, as proposed in the original project. Local and State officials were committed to pay no more than 60 percent of the total rights-of-way costs. The 1976 Act authorizes Federal funding for the modified project and the remaining land acquisition costs, so that the United States can fulfill its obligations to Mexico, which has completed its portion of the project.
See also H. Rept. 94-1399, Part 1, and S. Rept. 94-1237, 94th Cong., 2d Sess.
International Maritime Law
On August 31, 1976, President Ford transmitted to the Senate, for advice and consent to acceptance, the International Convention for the Safety of Life at Sea, 1974, done November 1, 1974 (Senate Executive 0, 94th Congress, 2d Session). The Convention was signed on behalf of the United States on November 1, 1974, and on behalf of 37 other states during the time it was open for signature. It is to enter into force 12 months after the date on which not less than 25 states, the combined merchant fleets of which constitute not less than 50 percent of the gross tonnage of the world's merchant shipping, have become parties to it.
The objective of the Convention is to bring up to date the international regulations for safety of life at sea in light of amendments adopted by the Assembly of the Intergovernmental Maritime Consultative Organization (IMCO), pursuant to the International Convention for the Safety of Life at Sea, 1960 (TIAS 5780; 16 UST 185), in 1966, 1967, 1968, 1969, 1971, and 1973, and to provide improved and accelerated amendment procedures. Upon its entry into force the 1974 Convention will, as between contracting governments, replace and abrogate the 1960 Convention.
The 1974 Convention sets forth the basic undertaking of contracting governments, together with procedural provisions. Annexed to the Convention and forming an integral part of it are chapters containing technical regulations.
The Department of State informed the President, in a report on August 9, 1976, that no additional legislation is necessary to implement the Convention. All of the technical amendments incorporated in the 1974 Convention had previously been accepted by the United States on the advice and consent of the Senate, but none of them had received the necessary explicit acceptance by the required two thirds of the contracting governments to enter into force. The
1974 Convention contains a procedure on acceptance of future amendments to the technical regulations, intended to accelerate their entry into force.
Assistance at Sea
Peninsular & Oriental Steam Navigation Company v. Overseas Oil Carriers, Inc., 418 F. Supp. 656 (1976), decided by the U.S. District Court for the Southern District of New York on August 20, 1976, was an action for reimbursement of expenses incurred by a British vessel in responding to a call for assistance from a tanker owned by a U.S. corporation. The tanker, the S.T. Overseas Progress, sent a radio distress request to all ships in the vicinity with a doctor abroad, after a seaman on the tanker had suffered a heart attack. The British ship S.S. Canberra traveled 232 extra miles to respond and took the ailing seaman aboard. The S.S. Canberra's owner subsequently sought reimbursement for diversion costs and out-of-pocket expenses totalling over $12,000.
The Court held that the diversion costs could not be recovered, and that only $500 for accommodation and nursing, equivalent of hospitalization costs, would be allowed on the theory of unjust enrichment. Said the Court:
The sea is a hard master and those who sail her are united in a common struggle. It is their tradition to answer calls of distress regardless of cost or peril. So firmly accepted is this tradition that our laws make it a criminal offense to ignore those "at sea in danger of being lost." [46 U.S.C. 728]. .
The arguments of the parties raise two issues: 1) whether the action is, in essence, an attempt at remuneration for "pure life salvage" and 2) whether there can be a recovery based on contract (quantum meruit or unjust enrichment).
The law of the sea has clearly not allowed an award solely for life salvage. In order to recover for life salvage, there must be property salvaged.
Here plaintiff maintains that it is asking only for reimbursement of expenses, not an award. This distinction has not been recognized by the courts . . .
The contract claim constitutes the crux of plaintiff's case.
Admiralty has no power to enforce an independent equitable claim. . . . However, admiralty does have jurisdiction over causes of action based on the concept of unjust enrichment as long as the claim arises out of a maritime contract. . . . Here there was no written contract between the parties. Consequently, plaintiff must
establish its claim either via quasi-contract (a contract implied in law) or quantum meruit (a contract implied in fact). . . .
The Court stated further that it had found no case which applied quantum meruit to the saving of life at sea, only cases dealing with property salvage. It rejected the theory of quasi-contract, or unjust enrichment, as no misconduct, fault, or undue advantage was involved. From the standpoint of public policy, the Court pointed out:
the allowance of an award might be said to encourage assistance. On the other hand, a ship with a stricken crewman might be reluctant to seek aid if large, unforeseen expenses could be assessed against it. The answer would seem to be in appropriately drafted legislation or international compacts imposing sensible limitations...
For the present it would appear to be beyond the province of this district court to inaugurate a new policy deviating from the centuries old common law doctrine. .
Manning of Foreign Vessels
In a legal opinion dated November 25, 1975, Rear Admiral Ricardo A. Ratti, Chief Counsel of the Coast Guard, stated that the United States has authority under 46 U.S.C. 224a to withhold clearance of foreign vessels within the territory of the United States for failure to comply with the Officer's Competency Certificates Convention of 1936 (International Labor Organization Convention No. 53; TS 950; 54 Stat. 1683), where those vessels are registered in a nation for which that Convention is in force. He noted that section 224a does not authorize such action against vessels of nations not party to the Convention. Admiral Ratti stated, in part:
Foreign vessels are not subject to the minimum officer manning standards set out at 46 U.S.C. 223, which deals only with merchant vessels "of the United States." No specific authority has been found for any minimum officer manning standard for a foreign vessel which is not subject to the Officer's Competency Convention or the SOLAS Convention [International Convention for the Safety of Life at Sea, 1960 (TIAS 5780; 16 UST 185)], except under the Tanker Act, as indicated in the following paragraph.
The Coast Guard has authority under the Tanker Act, 46 U.S.C. 391a, to prescribe manning standards for foreign vessels entering U.S. navigable waters carrying liquid cargo in bulk which is (a) combustible, or (b) oil, or (c) designated as a hazardous polluting substance under 33 U.S.C. 1162(a), except that "Rules and regulations for vessel safety established hereunder and the provisions of this subsection (391 A(5)) shall not apply to vessels of a foreign nation having on board a valid certificate of inspection recognized under law or treaty by the United States." That is,
manning standards may be established for foreign vessels to which the Act applies, except as to vessels registered in a nation signatory to SOLAS or the Officers' Competency Convention. Violations of section 391a, or regulations established thereunder, are subject to the penalties set out in section 391a(11). The Coast Guard has not yet exercised its authority to prescribe manning standards under the Act.
In those instances where a vessel is not registered in a nation which is a party to the 1936 Convention, restriction on movement may be accomplished through the broad authority granted under the Ports and Waterways Safety Act [86 Stat. 424; 33 U.S.C. 1221-1227; 46 U.S.C. 391a], as implemented in 33 CFR 160. 35, if the actual manning standards of the vessel impose a significant risk to safe navigation or to the security of other vessels or waterfront facilities.
This regulation authorizes imposition of restrictions on vessel movement to promote safety, and to prevent damage to vessels, structures, adjacent shore areas and the environment. Restrictions might include denial of port entry, orders to a vessel to leave a port, or possibly orders to a vessel not to move, at all until a safety hazard was eliminated. It is doubtful, however, that mere absence of competency certificates, would by itself be indicative of a serious enough hazard to justify the rather extreme action of ordering a vessel not to depart, where a sufficient number of noncertificated personnel were aboard to conduct a movement properly. Any requirement imposed under section 160.35 must be clearly directed at correction or prevention of a specific hazardous situation.
Dept. of Transportation, Coast Guard Law Bulletin, No. 413, Mar. 1976, pp. 15-16.
Liability for Maritime Claims
The United States participated with 46 other countries in the International Conference on Limitation of Liability for Maritime Claims, which convened in London November 1-19, 1976, under the auspices of the Intergovernmental Maritime Consultative Organization. The Conference adopted a Convention on Limitation of Liability for Maritime Claims by a vote of 34 to 0, with 6 abstentions. The United States abstained.
The Convention adopted by the Conference has two essential features: First, it establishes a regime of limitation which is essentially unbreakable and would assure that the shipowner would be able to limit his liability in almost every case. Second, the Convention provides for determination of limits of liability on the basis of tonnage, so that the limit would be constant for a particular vessel and would not depend on such unpredictable factors as the value of the vessel after the incident.
The U.S. Delegation, in its report to the Secretary of State, expressed disappointment in the outcome of the Convention. It acknowledged that it presented a sound approach to the doctrine of