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STATEMENT OF THE COUNCIL OF EUROPEAN &
JAPANESE NATIONAL SHIPOWNERS' ASSOCIATIONS (CENSA)
BEFORE THE SUBCOMMITTEE ON LABOR STANDARDS,

OCCUPATIONAL HEATH AND SAFETY OF
THE HOUSE EDUCATION AND LABOR
COMMITTEE ON H.R. 1517

MAY 13, 1993

The Council of European & Japanese National Shipowners'

Associations, known as CENSA, is pleased to present this

statement for the Committee's consideration.

CENSA is comprised

of the National Shipowners' Associations of Belgium, Denmark, Finland, France, Germany, Greece, Italy, Japan, the Netherlands,

Norway, Sweden and the United Kingdom.

The International

Shipping Federation joins in these comments.

The International

Shipping Federation is the international employers' organization

for shipowners and is concerned with labour affairs and manning

and training issues at international level.

Membership comprises

national shipowners' operations of over 20 countries including

all the members of CENSA, and together represents more than half

[blocks in formation]

The Bill would place the United States in conflict with

international law which has recognized that laws of the

flag state should govern vessels and the Bill would

reverse Supreme Court precedent and practice.
The Bill would violate and undermine existing

International Agreements to which the United States is

a party and which now protect merchant seamen,

including:

The International Labor Organization Convention

147

The 1958 Convention on the High Seas.

Existing Treaties of Friendship Commerce and

Navigation.

Vienna Convention on Consular Relationship and

Optional Protocol on Disputes of 1963.

The Bill would intrude on the sovereignty of foreign

nations, invite other countries to react in the same

manner against United States flag vessels and adversely

affect international trade.

I.

THE BILL WOULD CONFLICT WITH INTERNATIONAL

LAW AND UNITED STATES SUPREME COURT PRECEDENT

The present bill seeks to impose United States laws of

collective bargaining, union elections and representation, United States unfair labor practices and wage control over foreign vessels calling at United States ports. It would do so by making foreign vessels subject to the full reach of the National Labor

Relations Act, the NLRB and the Fair Labor Standards Act of 1938.

It would bring the United States in conflict with the laws of the

countries of registry of foreign vessels, would violate long

standing rules of comity and international law and practice,

would intrude into the labor relations of foreign vessels,

adversely affect international trade between the u.s. and foreign countries and injure international shipping, including u.s.-flag

vessels.

Under both international and domestic law, vessels have long

been considered as an extension of the state in which they are

registered. This doctrine, i.e. giving recognition to a vessel's country of registry, called the flag state, has been followed for very practical reasons. Unlike facilities such as manufacturing plants which have fixed geographic locations, vessels constantly move, spending limited periods of time in ports of many countries

and most of their time on the high seas beyond the territorial

jurisdiction of any country. To foster a legal regime for vessels which would impose differing and changing national rules based on temporary contacts, would foster chaotic and contradictory regulation. It would make the uniform application of any law and foreseeability of long term relationships impossible and disrupt trade by the resulting inefficiencies and clash of sovereignty and rules. It is for these very practical reasons and to reflect the sovereignty of the state where the vessel owners are incorporated and flagged, that flag state regulation has been uniformly accepted by the nations of the world under international law and comity. In any event, the absolute jurisdiction of all sovereign states, including the United States, does not extend beyond their own territorial

waters.

This approach based on the flag state concept has

permitted a single and predictable legal regime for each vessel.

This long-standing position of the nations of the world has been recognized and followed by the United States as a matter of

comity.

In Wildenhus's Case, 120 u.s. 1 s.ct. (1887), the

Supreme Court said:

"From experience, however, it was found
long ago that it would be beneficial to
commerce if the local government would
abstain from interfering with the internal
discipline of the ship, and the general
regulation of the rights and duties of the
officers and crew towards the vessel or among
themselves. And so by comity it came to be
generally understood among civilized nations
that all matters of discipline and all things
done on board which affected only the vessel
or those belonging to her, and did not
involve the peace or dignity of the country,
or of the tranquility of the port, should be
left by the local government to be dealt with
by the authorities of the nation to which the
vessel belonged as the laws of that nation or
the interests of its commerce should
require."

In Mcculloch v. Sociedad Nacional. 372 U.S. 10 (1963), the

Supreme Court reviewed the adverse impact of an attempt by the

United States to impose pervasive regulation on the internal

order of foreign ships and stated:

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. 372 U.S. at p. 19.

II.

THE BILL WOULD VIOLATE INTERNATIONAL

AGREEMENTS TO WHICH THE UNITED STATES IS A PARTY

The extension of u.s. jurisdiction into labor matters

involving foreign-flag vessels would further be in direct

violation of existing treaty obligations of the United States.

A.

International Labor Organization Convention 147.

The United States is a party to ILO Convention 147 which it ratified on May 1988. This convention places the responsibility for matters envisaged by the clay Bill with the Country of Registry, and provides for a complaint procedure.

On February 1, 1988, the Senate ratified by a vote of 84-0 and President Reagan on May 12, 1988 signed the ratification

documents placing in force ILO Convention 147.

This convention

recognizes the national registry of ships and in Article 2(b)

places squarely on each individual state the duty:

(b)

to exercise effective jurisdiction
or control over ships which are
registered in its territory in
respect of--

(i)

safety standards, including
standards of competency, hours of
work and manning, prescribed by
national laws or regulation;

(ii) social security measures

prescribed by national laws or
regulations;

(iii) shipboard conditions of employment

and shipboard living arrangements
prescribed by national laws or
regulations, or laid down by
competent courts in a manner

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