of the Navy, for any vessel of the Navy, or the Secretary of the department in which the Coast Guard is operating, for any other vessel of the United States, shall certify that the vessel cannot comply fully with that requirement without interfering with the special function of the vessel.

(b) Whenever a certification is issued under the authority of subsection (a) hereof, the vessel involved shall comply with the requirement as to which the certification is made to the extent that the Secretary issuing the certification shall certify as the closest possible compliance by that vessel.

(c) Notice of the certification issued pursuant to subsections (a) and (b) hereof shall be published in the Federal Register.

SEC. 7. (a) 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 promulgate special rules with respect to additional station or signal lights for fishing vessels engaged in fishing as a fleet.

(b) The additional station or signal lights or whistle signals contained in the special rules authorized under subsection (a) hereof shall be, as far as possible, such that they cannot be mistaken for any light or signal authorized by the International Regulations. Notice of such special rules shall be published in the Federal Register and, after the effective date specified in such notice, they shall have effect as if they were a part of the International Regulations.

The Report submitted by Chairman John M. Murphy of the Merchant Marine and Fisheries Committee of the House of Representatives concerning this implementing legislation gave the following general description of the new international regulations brought into force by the Convention:

While the new international regulations substantially amend the exact language of the present international rules, many of the changes involve rearrangement and clarification of language, with the intention that they will be much easier to understand and to follow. In addition, of course, new requirements are reflected in the regulations relating to changes in technology and the operations of vessels since the rules were last revised. There is, for instance, a new regulation (rule 9) applicable to narrow channels or fairways, in recognition of the needs of deeper draft vessels which cannot operate outside those channels or fairways. There is a new regulation (rule 10) pertaining to adherence of traffic separation schemes which have developed in the international community to insure safer traffic patterns in areas of high shipping density, including the approaches to many harbors. There is a new regulation (rule 28) recognizing the limitations on maneuverability due to the available depth of water. There is a new regulation (rule 18) which specifically establishes priority rights as among classes of vessels, based primarily upon their operating capabilities under the circumstances. There is an expansion of the regulation pertaining to safe speed (rule 6), extending its applicability to all conditions of visibility, rather than to restricted visibility only. There are specific regulations (rule 6) related to the operation of vessels with radar, previously a recommendation, rather than a requirement. There is a more meaningful broadening of responsibility in connection with vessels in crossing situations (rules 15-17), permitting both vessels to take early action to avoid the development of dangerous situations. There is now a specific requirement (rule 5) for the maintenance of a proper lookout, rather than leaving such a requirement to the ordinary precaution of a responsible mariner.

As to those regulations concerning lights and shapes (rules 20-31), there has been substantial restructuring, although specific requirements have been little affected. For the first time, measurements are given in meters rather than in feet, although the dividing lines on requirements because of length remain substantially identical within the framework of the new measurement. Also, for the first time, the regulations contain technical annexes as to the construction, placement, and use of lights, shapes and signaling appliances. These annexes make more certain that the equipment required will be capable of meeting the requirements of the rules. Finally, there is rule 38, which exempts existing vessels, for varying periods of time, from coming into compliance with various changes. These exemption provisions substantially ameliorate the potential effect of the new regulations on existing vessels, without sacrificing safety needs.

H.R. Rep. No. 95-447, 95th Cong., 1st Sess., 40-41 (1977).

For information concerning previous legislation to implement the Convention and E.O. 11964, see the 1976 Digest, Ch. 7, § 12, pp. 394-395.

For information concerning sec. 3, which provides a method by which the United States may register an objection to an amendment to the International Regulations, see ante, Ch. 5, § 3, pp. 399–401.

Public Vessels Act

In United Continental Tuna Corp. v. U.S., 550 F.2d 569 (1977), the Ninth Circuit of the U.S. Court of Appeals held that a Philippine corporation which was 99 percent owned by U.S. citizens and whose ship was accidentally sunk off the California coast by a U.S. destroyer could not bring suit against the U.S. Government as a U.S. shipowner under the Public Vessels Act, 46 U.S.C. 781-790. The Ninth Circuit, J. Blaine Anderson, affirmed the summary judgment in favor of the U.S. Government by the U.S. District Court for the Central District of California, which had held that United Continental Tuna Corporation (Tuna) "failed to satisfy the reciprocity requirement of the Public Vessels Act in that Tuna could not establish that the Philippine Government allowed United States nationals to sue in its courts under similar circumstances." Id. 571. The Nineth Circuit held in part that the reciprocity provision did not deny Tuna due process of law.

In 1969, the MV Orient, a ship owned by Tuna was overtaken after proceeding 70 miles from San Pedro, California, by a U.S. destroyer, the U.S.S. Parsons, which pulled alongside and "veered. . ., striking the Orient” and causing it to sink. Id. The ship could not be salvaged. On January 14, 1970, Tuna filed a motion to substitute as plaintiffs the eight shareholders of Tuna and for leave to file an amended complaint. Id. The U.S. Government moved for summary judgment. After lengthy litigation including an opinion of the U.S. Supreme Court, United States v. United Continental Tuna Corporation, 425 U.S. 164, 96 S. Ct. 1319, 47 L. Ed. 2d 653 (1976), the Ninth Circuit reconsidered the case in light of the applicable provisions of Public Vessels Act, sections 781 and 785 of Title 46 of the U.S. Code. Section

257-179 O 79-42

781 states that "[a] libel in personam in admiralty may be brought against the United States, or a petition impleading the United States...." Section 785 states that "[n]o suit may be brought under this chapter by a national of any foreign government unless it shall appear to the satisfaction of the court in which suit is brought that said government, under similar circumstances, allows nationals of the United States to sue in its courts."

The Court refused to permit the foreign corporation to be treated as a U.S. citizen in part because the U.S. "shareholders, of their own volition, chose to incorporate under the laws of the Philippines" and having so chosen should not be permitted both "the tax and other incentives" of the Philippines and the "removal of the sovereign immunity defense" of the U.S. Government provided by the Public Vessels Act. Id. 573-574. The Court dismissed the appellant's argument that the reciprocity provision of the Public Vessels Act "denies it due process in violation of the Fifth Amendment" on the grounds. that Congress may legitimately distinguish between aliens of different countries. Portions of the Court's opinion concerning the constitutionality of the reciprocity provision appear below:

Appellant argues that the reciprocity provision, 46 U.S.C. 785, denies it due process in violation of the Fifth Amendment. The thrust of this argument is that there is no basis to include in the class of persons who are prohibited by the reciprocity statute from suing the United States, those citizens of countries who can be sued by the United States Government even though their country does not allow a suit against it by a United States citizen. In effect, they argue that there is no true reciprocity in the present case-the United States Government can sue a Philippine national, but a Philippine national cannot sue the United States Government.

The Fifth Amendment, as well as the Fourteenth Amendment, protects aliens from deprivation of life, liberty or property without due process of law. Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S. Ct. 445, 94 L. Ed. 616 (1950). However, as stated recently by the Supreme Court in Mathews v. Diaz, 426 U.S. 67, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976):

The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogenous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class and not the other; . . . 426 U.S. at 78, 96 S. Ct. at 1890.

The Mathews court also stated:

the party challenging the constitutionality of the particular line Congress has drawn has the burden of advancing princi

pled reasoning that will at once invalidate that line and yet tolerate the different line separating some aliens from others. 426 U.S. at 82, 96 S. Ct. at 1892.

The obvious purpose for the reciprocity statute is that Congress did not want to open our courts to foreign nationals when their countries would not allow United States citizens access to their courts. This is a rational classification and allows the legitimate distinction here between aliens of different countries. The position advanced by appellant which would allow a foreign national to sue our government when our government is able to sue that foreign national in that country's court would defeat this purpose. Our citizens would still be unable to sue in the foreign country's courts, a situation Congress hoped to remedy by the reciprocity statute.

550 F. 2d 574 (footnote omitted).

For further information concerning United Continental Tuna Corp. v. United States, see the 1976 Digest, Ch. 7, § 12, pp. 395–396.

On February 14, 1977, the U.S. Embassy in Tripoli submitted a note to the Ministry of Foreign Affairs of the Socialist People's Libyan Arab Jamahiriya responding to the Ministry's note of February 7, 1977, concerning an encounter between a U.S. military aircraft and Libyan Air Force planes on January 27. The Libyan note objected to the U.S. military aircraft entering an air space which the Libyan Air Force uses as a training area and which the Government of Libya considers prohibited to international flight.

Portions of the text of the U.S. note of protest read as follows:

The United States aircraft at no time approached closer than 53 nautical miles from the Libyan coast and at the time it was intercepted by the Libyan planes was 75 nautical miles off Libyan shores. The United States considers that the American aircraft in question was exercising the freedom to fly over the high seas in accordance with international law. The United States does not consider that any nation may validly purport to subject any part of the high seas, or the airspace over the high seas, to its sovereignty, nor to establish prohibited areas of the kind referred to in the Ministry's note. Moreover, the United States considers that the aircraft of the Libyan Air Force that flew dangerously close to the American aircraft failed to pay reasonable regard to the interests of all states in the exercise of the freedom of the high seas, in accordance with international law.

Dept. of State File No. P77 190-0038.

For further information concerning the subject of the U.S. position on air space claimed by the Libyan Government, see the 1973 Digest, Ch. 8, § 1, pp. 302-303.

$2

Bilateral Agreements

U.S.-Jordan

Air Services Agreements

On March 14 and 16, 1977, the United States and Jordan entered into an Agreement on Scheduled and Nonscheduled Air Services

(636)