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search, requiring consent for resource-related research and compliance with internationally agreed obligations for research not concerned with resources (L.26 and L.29).
The prior Soviet position, reflected in L.31 . . . called for consent for shelf research, and freedom for research in the water column and in the international area. In L.26 the Soviet Union proposed that in the economic zone, marine scientific research “related to the exploration and exploitation of living and nonliving resources” would be conducted only with the consent of the coastal state, and research not so related would be conducted subject to the fulfillment of a series of obligations; a similar regime would apply to research on the Continental Shelf beyond the economic zone. Research in the international area could be conducted freely. As this approach focusing on the purpose of the research had some appeal both to those seeking a consent regime and those advocating marine scientific research under an obligation regime, it was the center of discussion throughout the session. The major criticism levied at the Soviet approach by developing and some developed countries was the practical difficulty of making such a distinction. Some, led by Canada, concluded that all marine scientific research should be subject to a consent regime, while others stated that they could accept a distinction if the coastal state had the exclusive right to determine whether the research related to exploration or exploitation of resources.
From a U.S. perspective the most negative aspect of the session was the reintroduction by the Group of 77 of their proposal, L.13/Rev. 2. There was no change of position from their earlier insistence on explicit consent for research in the area under coastal state jurisdiction and/or sovereignty and direct control by the International Authority over all research in the international
For the full text of Ambassador Stevenson's statements of May 9 and June 4, 1975, see Dept. of State Bulletin, Vol. LXXII, No. 1876, June 9, 1975, pp. 783–786, and Hearings on Status Report on Law of the Sea Conference before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, 94th Cong., 1st Sess., June 4, 1975, pp. 1169–1174. The single negotiating text produced by the Chairman of Committee III at the Geneva session of the U.N. Law of the Sea Conference is at A/CONF.62/WP.8/ Part III, May 7, 1975. For the text and the report of the U.S. delegation, see Hearings on Status Report on Law of the Sea Conference before the Subcommittee on Minerals, Materials and Fuels of the Senate Committee on Interior and Insular Affairs, supra, and The Third U.N. Law of the Sea Conference, Geneva Session, March-May 1975, Report to the Senate, 94th Cong., 1st Sess.
The preliminary comments of the U.S. Government concerning the law of the non-navigational uses of international watercourses were transmitted to the Secretary-General of the United Nations in June 1975, in response to a series of questions contained in the report of the International Law Commission on the work of its twenty-sixth session, May 6 to July 26, 1974.
The United States expressed the view that the development of equitable and operable principles to provide for the availability of a constant supply of fresh water was a pressing requirement. It recommended that the water system of a hydrographic basin be considered in its entirety for the purpose of establishing international legal rules, irrespective of the political borders of the basin, and that the effects of diversions into and out of a basin be included in the study.
In addition to the fresh water uses suggested by the International Law Commission for study, the United States recommended study of the use of water for forestry and for thermal purposes, such as heat dissipation, and for natural functions, such as habitat for plant and animal species, transport of silt, and enrichment of flood plains. It advocated inclusion in the study of all factors affecting water levels, water flows, and water quality, and interaction between navigation and other uses. It supported the study of pollution either as the initial stage or as a primary issue.
The report of the International Law Commission on the law of the nonnavigational uses of international watercourses is at Ch. V of the ILC report on the work of its 26th sess. (Official Records of the General Assembly, 29th Sess., Supp. No. 10 (A/9610/Rev. 1)). The Sixth (Legal) Committee's report containing a summary of the debate on the subject is at U.N. Doc. A/9897. The U.S. comments were enclosed with Dept. of State airgram to USUN A-3867, June 5, 1975.
On May 19, 1975, the Supreme Court unanimously overturned its 120-year-old rule of divided damages in cases of maritime collision. In United States v. Reliable Transfer Company, Inc., 421 U.S. 397 (1975), the Supreme Court ruled that where two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, the damages should be allocated among the parties in proportion to their degree of fault.
The case involved the running aground of a tanker outside New York Harbor. The District Court found that the grounding was caused 25 percent by the failure of a Coast Guard light and 75 percent by the fault of the tanker's captain. It nevertheless assessed them equally under the longstanding divided damages rule that the United States had adopted from England in The Schooner Catherine v. Dickinson, 58 U.S. 170 (1854).
The Supreme Court noted that the United States was virtually the only major maritime nation still adhering to the divided damages rule. The United Kingdom had abandoned it in 1911 and followed instead the Brussels Collision Liability Convention of 1910 (103 British and Foreign State Papers 434; S. Ex. K, 75th Cong., 1st Sess.; not in force for the United States), which provides for the apportionment of damages on the basis of degree of fault. In an opinion by Mr. Justice Stewart, the Court said:
It is no longer apparent, if it ever was, that this Solomonic division of damages serves to achieve even rough justice. An equal division of damages is a reasonably satisfactory result only where each vessel's fault is approximately equal and each vessel thus assumes a share of the collision damages in proportion to its share of the blame, or where proportionate degrees of fault cannot be measured and determined on a rational basis.
In Fitzgerald v. Texaco, Inc., 521 F.2d 448 (1975), the United States Court of Appeals for the Second Circuit affirmed that, in a case involving a collision of ships of foreign registry 12 miles off the coast of England, a motion to dismiss a suit brought in New York was properly granted on the ground of forum non conveniens. In its opinion dated June 25, 1975, as modified on denial of rehearing on July 25, 1975, the Court held that, weighing the minimal possibility that the plaintiffs might be adversely affected by dismissal against the clear prejudice which the defendants would suffer if jurisdiction were retained, together with considerations of public interest and factors of convenience, the District Court had not abused its discretion in dismissing the action. A condition of the dismissal was that the defendants submit to the jurisdiction of courts in England and waive any defense of the statute of limitations.
On January 12, 1971, the M/V Brandenburg, a German vessel, had struck the wreckage of the S/T Texaco Caribbean, a Panamanian vessel owned by Texaco Panama, Inc. (Texpan), a foreign subsidiary of Texaco, Inc., in the Dover Straits 12 miles from the coast of England, where the Texaco Caribbean lay submerged as the result of a collision the previous day. Suits were brought in the Southern District of New York by two foreign corporations against Texaco under general maritime law for the loss of the Brandenburg and her cargo and by 12 estates of deceased German seamen through the Public Administrator of the County of New York against Texaco and Texpan under the general maritime law and the Death on the High Seas Act, 46 U.S.C. 761 et seq. The claims were based on defendants' alleged failure properly to mark the wreckage of the Texaco Caribbean.
The Court decided that the convenience to all parties of trying the cases in England and the inconvenience, especially with regard to producing witnesses, and inability to implead other parties directly involved, outweighed any temporary convenience to the plaintiffs of getting access to evidentiary material in New York, where Texaco had its main office.
The Court recognized that liability for a collision on the high seas between vessels flying different flags is determined according to the general maritime law as interpreted by the courts of the forum in which the action proceeds. After considering plaintiffs' argument that general maritime law as applied by the courts in England could be less favorable to their cause than that law as applied by American courts, the Court stated:
A district court has discretion to dismiss an action under the doctrine of forum non conveniens, however, even though the law applicable in the alternative forum may be less favorable to the plaintiff's chance of recovery. ... A contrary holding would emasculate the doctrine, for a plaintiff rarely chooses to bring an action in a forum, especially a foreign one, where he is less likely to recover. But the issue remains one of balancing the relevant factors, including the choice of law.
although the occurrence took place on the high seas, over which all nations share suzerainty, England clearly has the more direct interest in promulgating and enforcing rules for the safe passage of traffic in the English Channel.
Circuit Judge Oakes dissented. He called for sweeping away what he termed "cobwebs that fill the attic of admiralty law." These, he described as (1) the myth of registry, noting that although the M/V Texaco Caribbean flew the Panamanian flag, it was owned by a wholly owned Panamanian subsidiary of Texaco, Inc., an American multinational corporation, whose principal place of business was New York; (2) the need to reexamine the entire doctrine of forum non conveniens in the light of the transportation revolution and the dispersion of corporate authority; and (3) "the tendency to view shipping on the high seas as if it were still being conducted by sailing vessels . . . rather than by supertankers and other huge, speedy, modern steel behemoths." He also noted potential difficulties arising from changing claims of territorial limits and the fact that, outside the three-mile limit, the English Channel is international water. Even under the traditional doctrine of forum non conveniens, however, he disagreed with the majority opinion as to both practical considerations and public interest factors.
The Embassy of the Libyan Arab Republic at Washington, in a note dated January 10, 1975, to the Department of State, protested the flight on that day of a number of aircraft from an American aircraft carrier which, it stated, "was at a distance of 60 miles north of Misratha 60° off Tripoli parallel 15:50 East and 34:30 North." The note asserted that the aircraft "made three take-offs to the air approaching within 10 miles of land" and "chased an Algerian passenger airliner which was crossing the area.” The note stated further that “these acts
crossing the areas, impeding the movement, and threatening security of civil aviation; chasing the civilian airliner in the areas, are considered air piracy." Characterizing the operations of the American aircraft as "acts of aggression committed by American Forces,” it declared the intention of the Libyan Arab Republic to "proceed with the measures it deems necessary in this regard and which would guarantee its duty and right to protect its land, air space, and sea waters.
The Department of State in a reply note dated January 16, 1975, informed the Libyan Arab Republic that the aircraft had at no time approached closer than 25 nautical miles of the Libyan coast and had remained at all times over international waters under positive radar control. Noting that the American flight personnel had been aware of the presence of civilian aircraft in the area and had maintained appropriate distance from those aircraft, it denied that there had been any pursuit of civilian aircraft or that such aircraft had been endangered in any way by the flight operations. The Department's note added: "The Government of the United States wishes to assure the Government of the Libyan Arab Republic that the United States aircraft in question were on a routine mission over international waters, in keeping with the longstanding United States position on freedom of flight in such areas. Such flights in no way constitute a threat against any sovereign nation."