APPENDIX Extracts from Opinion by Justice Clark in McCulloch v. Sociedad Nacional, 372 U.S. 10 (1963) [Footnotes omitted. I Six years ago this Court considered the question of the application of the Taft-Hartley amendments to the Act in a suit for damages "resulting from the picketing of a foreign ship operated entirely by foreign seamen under foreign articles while the vessel [was] temporarily in an American port." Benz v. Compania Naviera Hidalgo, supra, at 139. We held that the Act did not apply, searching the language and the legislative history and concluding that the latter "inescapably describes the boundaries of the Act as including only the workingmen of our own country and its possessions." Id., at 144. (Id. at 18) A-1 (Id. at 18-19) It is contended that this case is nonetheless distinguishable from Benz in two respects. First, here there is a fleet of vessels not temporarily in United States waters but operating in a regular course of trade between foreign ports and those of the United States; and, second, the foreign owner of the ships is in turn owned by an American corporation. We note that both of these points rely on additional American contacts and therefore necessarily presume the validity of the "balancing of contacts" theory of the Board. But to follow such a suggested procedure to the ultimate might require that the Board inquire into the internal discipline and order of all foreign vessels calling at American ports. Such activity would raise considerable disturbance not only in the field of maritime law but in our international relations as well. In addition, enforcement of Board orders would project the courts into application of the sanctions of the Act to foreign-flag ships on a purely ad hoc weighing of contacts basis." This would inevitably lead to embarrassment in foreign affairs and be entirely infeasible in actual practice. The question. therefore, appears to us more basic; namely, whether the Act as written was intended to have any application to foreign registered vessels employing alien seamen. A-2 * 11 We continue to believe that if the sponsors of the original Act or of its amendments conceived of the application now sought by the Board they failed to translate such thoughts into describing the boundaries of the Act as including foreign-flag vessels manned by alien crews." Therefore, we find no basis for a construction which would exert United States jurisdiction over and apply its laws to the internal management and affairs of the vessels here flying the Honduran flag, contrary to the recognition long afforded them not only by our State Departinent but also by the Congress." In addition, our attention is called to the well-established rule of international law that the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus's Case, supra, at 12; Colombos, The International Law of the Sea (3d rev. ed. 1954), 222-223. The possibility of international discord cannot therefore be gainsaid. Especially is this true on account of the concurrent application of the Act and the Honduran Labor Code that would result with our approval of jurisdiction. Sociedad, currently the exclusive bargaining agent of Empresa under Honduran law, would have a head-on collision with N. M. U. should it become the exclusive bargaining agent under the Act. This would be aggravated by the fact that under Honduran law N. M. U. is prohibited from representing (Id. at 20-21) The presence of such highly charged international circumstances brings to mind the admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2 Cranch 64, 118 (1804), that "an act of congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ." We therefore conclude, as we did in Benz, that for us to sanction the exercise of local sovereignty under such conditions in this "delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed." 353 U. S.. at 147. (Id. at 21-22) A-3 ICCL INTERNATIONAL COUNCIL STATEMENT ON BEHALF OF THE INTERNATIONAL COUNCIL OF CRUISE LINES BEFORE THE HOUSE MERCHANT MARINE SUBCOMMITTEE REGARDING H.R. 1126 LEGISLATION TO EXTEND U.S. LABOR LAWS TO FOREIGN-FLAG VESSELS WEDNESDAY, SEPTEMBER 23, 1992 My name is John T. Estes, I am President of the International Council of Cruise Lines (ICCL). The ICCL is a non-profit industry association comprised of American and foreign owned companies engaged in the overnight passenger cruise line business. I am here today on behalf of the industry to voice strong opposition to H.R. 1126, a bill to extend coverage of certain federal labor laws to foreign-flag vessels. There are three major points to be emphasized in presenting our testimony before this Subcommittee: First, this industry is pro-growth striving for continued and sustained economic expansion in the many countries in which we operate, but principally in the United States. Second, this industry is pro-jobs and strives for continuously improved working conditions without any discrimination in hiring practices, including nationality. Third, economic and employment expansion can be accomplished without jeopardizing international commerce or sacrificing the substantial employment and economic benefits this industry currently provides to the United States. Our opposition to H.R. 1126 does not indicate opposition to the two bodies of law this bill would amend the National Labor Relations Act (NLRA) and the Fair Labor Standards Act (FLSA). Rather, as you will see, H.R. 1126 should be rejected because it disregards well established principles of understanding and comity in the United States, in other countries, and in international law and maritime practice. Further, it promises to dismantle domestic |