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limitation in permitting the shipowner to insure to known limits; the insurer to calculate premiums on the basis of a known exposure; and the claimant to have some measure of protection in cases where the vessel has little value. However, the Delegation stated that equity to claimants requires that this approach incorporate limits of liability which correspond to the reasonable availability of insurance. The report added:
The Convention adopted by the Conference does not establish limits which correspond to reasonably insurable levels. In general, it provides for limits which are considerably below levels which can be (and in the United States at least, are) reasonably insured. Accordingly, the Convention is too heavily weighted in favor of the shipowner and against the interests of claimants.
For states parties to the 1957 Brussels Convention, the new Convention provides some improvement. It generally increases limits to levels approximately double the existing limits, with much more substantial increases for small vessels. The Convention also resolves a number of technical problems encountered under the 1957 Convention
Because of the low limits which were adopted, however, the U.S. Delegation abstained on the vote on final passage
One longstanding argument for limitation of liability in the United States, indeed the major impetus behind the 1851 domestic statute (46 U.S.C. 181 et seq.), is that without such a statutory right American flag shipowners will be placed at a competitive disadvantage vis-a-vis shipowners whose vessels operate in nations where some form of limitation of civil liability is provided for. This reasoning is certainly open to question given the fact that all ships, regardless of registry, upon entering U.S. jurisdictional waters, subject themselves to whatever potential civil liability may be allowed under the domestic law of this nation. Therefore, the owners of these ships will incur insurance costs commensurate with those paid by prudent American flag operators.
The Delegation firmly believes that existing U.S. law on the subject of liability for maritime claims is anachronistic. If it is thought that the doctrine of limitation should continue to be applied by U.S. courts, then it must be substantially revised. The Delegation believes that the limitation regime established by the new Convention is technically sound, and provides a good model if new U.S. legislation on limitation is undertaken. Of course, the legislation would have to provide high enough limitation amounts to effect a fair balancing of the interests of shipowners and claimants.
Report of the U.S. Delegation to the International Conference on Limitation of Liability for Maritime Claims, London, England, Nov. 1-19, 1976, submitted by Rear Admiral G. H. Patrick Bursley, U.S. Coast Guard, Chairman of Delegation, Jan. 1977. The United States is not a party to the 1957 Brussels Convention Relating to the Liability of Owners of Seagoing Ships. For the text of that convention, see Dept. of State Bulletin, Vol. XXXVII, No. 959, Nov. 11, 1957, p. 759.
On October 10, 1976, President Ford vetoed H.R. 5446, a bill to implement the U.S. obligations under the Convention on the International Regulations for Preventive Collisions at Sea, 1972 (Senate Executive W, 93d Congress, 1st Session). The Senate gave its advice and consent to ratification of the Convention on December 12, 1975. The Administration submitted draft implementing legislation, but this was revised by Congress to require that the President report promptly to Congress any amendment to the International Regulations proposed by the Intergovernmental Maritime Consultative Organization (IMCO). Under the revised legislation, either House of Congress could then, by resolution, require the President to object to an amendment and thus prevent its entry into force for the United States.
The President's memorandum of disapproval of H.R. 5446 stated, in part:
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.
This 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 responsibilities 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 domestic 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.
Weekly Compilation of Presidential Documents, Vol. 12, No. 42, p. 1486.
The United States deposited an instrument of acceptance to the Convention on the International Regulations for Preventing Collisions at Sea, 1972, on November 23, 1976, and on January 19, 1977, the President proclaimed the entry into force of the convention for the United States, effective July 15, 1977. On the same date he signed Executive Order 11964 on implementation of the convention, directing 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, to determine and certify, in accordance with the International Regulations for Preventing Collisions at Sea, 1972, which vessels cannot comply fully with the provisions of any of those International Regulations with respect to number, positions, range or arc of visibility of lights or shapes, as well as the disposition and characteristics of sound-signalling appliances, without interfering with the special function of the vessel.
The Executive order also directs the respective Secretaries, to the extent permitted by law, to promulgate special rules with respect to additional station or signal lights for vessels of various types. They are likewise authorized to exempt, in accord with Rule 38 of the 1972 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 for Preventing Collisions at Sea, 1960 (TIAS 5813; 16 UST 794).
The Secretary of the Department in which the Coast Guard is operating is also authorized, to the extent permitted by law, to promulgate such rules and regulations as are necessary to implement the provisions of the Convention and International Regulations.
Fed. Reg., Vol. 42, No.15, Jan. 24, 1977, pp. 4327-4328.
In United States v. United Continental Tuna Corporation, 425 U.S. 164 (1976), the Supreme Court held, on March 30, 1976, that the
"reciprocity" requirement of the Public Vessels Act (43 Stat. 1112;46 U.S.C. 781-790) is fully effective, notwithstanding a later amendment to the Suits in Admiralty Act (41 Stat. 525; 46 U.S.C. 741-752). Following a collision between a U.S. Navy destroyer and a Philippine-owned fishing vessel, the owner of the fishing vessel brought suit against the United States. Jurisdiction was alleged under both the Suits in Admiralty Act and the Public Vessels Act. The District Court dismissed the suit, holding that the reciprocity requirement of the Public Vessels Act had not been satisfied in that the vessel's Philippine owner had failed to establish that Americans could sue in the Philippine courts under similar circumstances. The Court of Appeals for the Ninth Circuit reversed, ruling that the owner did not have to meet the requirements of the Public Vessels Act since it could maintain the suit independently under the Suits in Admiralty Act.
The Supreme Court granted the petition of the United States for certiorari and, in a 7-1 decision, reversed the ruling of the Ninth Circuit. It held that when a "public vessel" of the United States is involved, the requirements of the Public Vessels Act must be met before an action against the United States may be maintained. Although the Suits in Admiralty Act was amended in 1960 to contain broad language authorizing admiralty actions against the United States, the 1960 amendment was not intended to repeal the specific conditions which Congress in the Public Vessels Act imposed on suits involving public vessels of the United States
The Jones Act
In Koupetoris v. Konkar Intrepid Corporation, 535 F.2d 1392 (1976), a Greek seaman brought action against a Greek shipowner to recover damages under the Jones Act, 46 U.S.C. 688, and general maritime law for injuries sustained aboard ship in waters off the coast of Maryland. The U.S. District Court for the Southern District of New York dismissed the action for insufficiency under the Act and inappropriateness of the forum. The plaintiff appealed and the shipowner cross-appealed from so much of the lower court's opinion as held that the shipowner was subject to the Court's in personam jurisdiction and had been properly served with process.
The Court of Appeals affirmed the judgment of the lower court. It held that the activity of the shipowner's New York representative, as general or managing agent for the shipowner, was sufficient to meet the requirement of minimum contacts rendering the Greek shipowner amenable to suit in New York without violating due process. However, the Court upheld the dismissal of the plaintiff's Jones Act claim on the grounds of insufficiency. It held that where the
injured seaman, shipowner and shipowner's stockholders were citizens and residents of Greece, the shipowner's principal place of business was in Athens, and all of the members of the crew were aliens, the happenstance that the seaman's injuries occurred off the coast of the United States was not sufficient contact with the United States to allow the alien to invoke the Jones Act.
The Court affirmed also that dismissal of the Greek seaman's claim under general maritime law on forum non conveniens grounds was proper, since the only connection of the United States with the controversy was that the accident occurred while the ship was in U.S. waters, there was a Greek forum available, dismissal would not operate to foreclose a remedy, and the seaman would not be put to unreasonable expense by litigating the claim in Greece.