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

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.

Collisions

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.