B. Only a self-executing treaty may supersede a prior Act of Congress without implementing legislation. A treaty which requires no legislation to authorize executive action pursuant to its provisions, supersedes an earlier Act of Congress so far as inconsistent therewith. Cook v. U.S. 288 102 (1932).

C. The intent to supersede a prior Act of Congress must be clear from the provisions of the Treaty. The purpose by treaty to supersede a whole or part of an Act of Congress, must not be lightly assumed, but must appear clearly and distinctly from the words used in the treaty. U.S. v. Lee Yen Tai 185 U.S. 213 (1901). Å later treaty will not be regarded as repealing an earlier statute by implication unless the two are absolutely incompatible and the statute cannot be enforced without antagonizing the treaty. Johnson v. Browne 205 U.S. 309, 321 (1906).

In the findings and purpose clauses of the 1972 Convention, the intent of the drafters, as expressed, was to "revise and bring up to date International Regulations for Preventing Collisions at Sea annexed to the Final Act of the International Conference on Safety of Life at Sea, 1960." As discussed previously infra, these prior regulations were enacted into domestic law by implementing legislation in P.L. 88-131 of 1965. The intent is clear then to revise and update and not to supersede totally the previously approved international rules and regulations. However, the expectation of Article I of the 1972 Convention is that each party signatory should individually undertake to effect the implementation of the rules thus approved. Matters involving domestic implementation of treaties have long been held exclusively those of municipal law. See e.g. Art. 23 Vienna Convention on the Law of Treaties.

D. The proclamation of the treaty must clearly reflect an intent to supersede existing law. Repeals of existing legislation by implication are not to be favored. Harlan, J. in Frost v. Wenie 157 U.S. 46, 58 (1894). Like principles must control when the question is whether an Act of Congress has been superseded in whole or in part by a subsequent treaty. A statute enacted by Congress expresses the will of the people of the U.S. in the most solemn form. If not repugnant to the Constitution, it is made by that instrument a part of the supreme law of the land, and should never be held to be displaced by a treaty, subsequently concluded, unless it is impossible for both the stand together and be enforced. U.S. v. Lee Yen Tai, Supra at 235.

The Executive Order 11964 of January 19, 1977 at best by implication supersedes P.L. 88-131 in seeking to implement the revisions to the collision rules contained in the 1972 Convention.

CONCLUSION

If the Convention of 1972 is self-executing, a most narrow construction of the differences between the 1960 and 1972 collision rules should be applied in reading the Executive Order.

A. The Convention supersedes the international rules as codifled at 33 U.S.C. 1061-1094 only to the extent that the old rules are inconsistent with the new ones adopted.

B. Neither the Convention, nor any Executive Order, can change existing rules for inland waters of the United States. The Executive Order makes no mention of any existing inland rules enacted as part of the domestic regulatory scheme over operating rules and regulations for U.S. vessels. While, with respect to the International rules, the treaty should be read section-by-section for its effect upon existing law, it can have no effect upon existing inland rules of the road. These rules are clearly recognized as valid by the terms of the Convention itself. Part A, Rule 1(b) of the Convention states that the International rules “shall not interfere with the operation of special rules for inland waterways connected with the high seas and navigable by seagoing vessels. Such special rules shall conform as closely as possible to these Rules."

CONVENTION ON THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972

Rule 3(g) (vi)

ADDENDUM-21 January 1974

Replace the words "render her unable to deviate from her" by the words "severely restricts the towing vessel and her tow in their ability to deviate from their".

Rule 16

Delete the words "by these Rules".

Rule 17(a)(i)

Delete the words "by any of these Rules".

Rule 24(f)

Insert the word "alongside" after the words "vessels being towed". Rule 26(d)

Insert the words "engaged in fishing" after the word "vessels". Rule 38(f)

Replace the word "Section" by the words "Sections 2(g) and".

FINAL ACT OF THE INTERNATIONAL CONFERENCE ON REVISION OF THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972

1. Upon the invitation of the Inter-Governmental Maritime Consultative Organization a Conference was held in London from 4 October to 20 October 1972 for the purpose of revising the International Regulations for Preventing Collisions at Sea, 1960.

2. The Governments of the following States were represented by Delegations at the Conference:

3. The Governments of the following States were represented at the Conference by Observers:

The Government of Hong Kong also sent an Observer.

4. The following inter-governmental organizations sent Representatives to the Conference:

United Nations

Economic Commission for Europe (ECE)

International Civil Aviation Organization (ICAO)

5. The following non-governmental organizations were represented at the Conference by Observers:

International Association of Lighthouse Authorities (IALA)

International Confederation of Free Trade Unions (ICFTU)

International Chamber of Shipping (ICS)

International Maritime Pilots' Association (IMPA)

Oil Companies' International Marine Forum (OCIMF)

Permanent International Association of Navigation Congresses (PIANC).

6. The Conference elected Captain K. J. N. Wie, Head of the delegation of Norway, as President of the Conference.

7. Captain F. P. Sohnke (Federal Republic of Germany), Captain A. J. Nikolov (Bulgaria), Rear-Admiral J. A. Alvarez (Argentina), Captain H. S. Atmadja (Indonesia) and Captain W. Valkenier (Liberia) were elected as VicePresidents of the Conference.

8. The Secretary-General of the Conference was Mr. Colin Goad (SecretaryGeneral of the Inter-Governmental Maritime Consultative Organization) and the Deputy Secretary-General of the Conference was Mr. J. Quéguiner (Deputy Secretary-General of the Organization). The Executive Secretary of the Conference was Captain A. Saveliev (Secretary of the Maritime Safety Committee of the Organization) and the Deputy Executive Secretary of the Conference was Captain Z. N. Sdougos (Head of the Marine Safety Division of the Organization). 9. The Conference established five Committees for the accomplishment of its work:

Committee I

Chairman: Captain G. W. R. Graves (Canada).

Vice-Chairmen: Captain F. Pèlerin (France) Mr. H. Sagara (Japan). Committee II

Chairman: Captain B. N. Repkin (Union of Soviet Socilaist Republics). Vice-Chairmen: Lieutenant-Commander E. Mitropoulos (Greece); Captain M. W. Patel (India).

Steering Committee

Chairman: Captain K. J. N. Wie (Norway), President of the Conference. Credentials Committee

Chairman: Baron de Gerlache de Goméry (Belgium).

Drafting Committee

Chairman: Captain E. O. Jones (United Kingdom).

10. The Conference had as the basis for its discussions, the following documentation:

The International Regulations for Preventing Collisions at Sea, 1960;

A draft Agreement together with draft Regulations and Annexes which had been prepared in the Inter-Governmental Maritime Consultative Organization and communicated to governments prior to the opening of the Conference;

Proposals and comments, including amendments to the documents mentioned above, submitted to the Conference by interested governments and organizations. 11. As a result of its deliberations, as contained in the records of the plenary sessions and in the records and reports of the respective Committees, the Conference adopted and opened for signature and accession:

The Convention on the International Regulations for Preventing Collisions at Sea, 1972, to which are attached the Rules and others Annexes which constitute the International Regulations for Preventing Collisions at Sea, 1972.

The Convention and the Regulations constitute Attachment 1 to this Final Act.

12. The Conference also adopted Resolutions on the following subjects:

Participation at the Assembly of the Organization with the right to vote by all Contracting Parties whenever amendments to the Regulations are under consideration (Resolution I);

Early deposit of instruments of ratification, approval, acceptance or accession (Resolution II);

the texts of which are appended to this Final Act as Attachments 2 and 3. 13. The text of this Final Act, being a single original in the English, French, Russian and Spanish languages, together with the texts of the Convention on the International Regulations for Preventing Collisions at Sea, 1972, the Regulations attached thereto and the Resolutions of the Conference, which are in English and French, shall be deposited with the Inter-Governmental Maritime Consultative Organization. Official translations of the attached Convention, Regulations and Resolutions shall be prepared in the Russian and Spanish languages and shall be deposited together with this Final Act.

14. The Secretary-General of the Inter-Governmental Maritime Consultative Organization shall send a certified copy of this Final Act and, when they have been prepared, certified copies of the official translations of the Convention, the

Regulations and Resolutions to each of the Governments invited to send Representatives to this Conference.

IN WITNESS WHEREOF the undersigned have affixed their signatures to this Final Act.

DONE AT LONDON this twentieth day of October, one thousand, nine hundred and seventy-two.

[ATTACHMENT 1]

CONVENTION ON THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972

The Parties to the present Convention,

DESIRING to maintain a high level of safety at sea,

MINDFUL of the need to revive and bring up to date the International Regulations for Preventing Collisions at Sea annexed to the Final Act of the International Conference on Safety of Life at Sea, 1960,

HAVING CONSIDERED those Regulations in the light of developments since they were approved,

HAVE AGREED as follows:

General Obligations

ARTICLE I

The Parties to the present Convention undertake to give effort to the Rules and other Annexes constituting the International Regulations for Preventing Collisions at Sea, 1972, (hereinafter referred to as "the Regulations”) attached hereto.

ARTICLE II

Signature, Ratification, Acceptance, Approval and Accession

1. The present Convention shall remain open for signature until 1 June 1973 and shall thereafter remain open for accession.

2. State Members of the United Nations, or of any of the Specialized Agencies, or the International Atomic Energy Agency, or Parties to the Statute of the International Court of Justice may become Parties to this Convention by:

(a) signature without reservation as to ratification, acceptance or approval; (b) signature subject to ratification, acceptance or approval followed by ratification, acceptance or approval; or

(c) accession.

3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the Inter-Governmental Maritime Consultative Organization (hereinafter referred to as "the Organization") which shall inform the Governments of States that have signed or acceded to the present Convention of the deposit of each instrument and of the date of its deposit. shall inform the Governments of States that have signed or acceded to the present Convention of the deposit of each instrument and of the date of its deposit.

Territorial Application

ARTICLE III

1. The United Nations in cases where they are the administering authority for a territory or any Contracting Party responsible for the international relations of a territory may at any time by notification in writing to the Secretary-General of the Organization (hereinafter referred to as "the Secretary-General”), extend the application of this Convention to such a territory.

2. The present Convention shall, upon the date of receipt of the notification or from such other date as may be specified in the notification, extend to the territory named therein.

3. Any notification made in accordance with paragraph 1 of this Article may be withdrawn in respect of any territory mentioned in that notification and the extension of this Convention to that territory shall cease to apply after one year or such longer period as may be specified at the time of the withdrawal.

4. The Secretary-General shall inform all Contracting Parties of the notification of any extension or withdrawal of any extension communicated under this Article.

Entry into force

ARTICLE IV

1. (a) The present Convention shall enter into force twelve months after the date on which at least 15 States, the aggregate of whose merchant fleets constitutes not less than 65 percent by number or by tonnage of the world fleet of vessels of

98-834-77-2

100 gross tons and over have become Parties to it, whichever is achieved first. (b) Notwithstanding the provisions in subparagraph (a) of this paragraph, the present Convention shall not enter into force before 1 January 1976.

2. Entry into force for States which ratify, accept, approve or accede to this Convention in accordance with Article II after the conditions prescribed in subparagraph 1(a) have been met and before the Convention enters into force, shall be on the date of entry into force of the Convention.

3. Entry into force for States which ratify, accept, approve or accede after the date on which this Convention enters into force, whall be on the date of deposit of an instrument in accordance with Article II.

4. After the date of entry into force of an amendment to this Convention in accordance with paragraph 4 of Article VI, any ratification, acceptance, approval or accession shall apply to the Convention as amended.

5. On the date of entry into force of this Convention, the Regulations replace and abrogate the International Regulations for Preventing Collisions at Sea, 1960. 6. The Secretary-General shall inform the Governments of States that have signed or acceded to this Convention of the date of its entry into force.

Revision Conference

ARTICLE V

1. A Conference for the purpose of revising this Convention or the Regulations or both may be convened by the Organization.

2. The Organization shall convene a Conference of Contracting Parties for the purpose of revising this Convention or the Regulations or both at the request of not less than one-third of the Contracting Parties.

Amendments to the Regulations

ARTICLE VI

1. Any amendment to the Regulations proposed by a Contracting Party shal be considered in the Organization at the request of that Party.

2. If adopted by a two-thirds majority of those present and voting in the Maritime Safety Committee of the Organization, such amendment shall be communicated to all Contracting Parties and Members of the Organization at least six months prior to its consideration by the Assembly of the Organization. Any Contracting Party which is not a Member of the Organization shall be entitled to participate when the amendment is considered by the Assembly.

3. If adopted by a two-thirds majority of those present and voting in the Assembly, the amendment shall be communicated by the Secretary-General to all Contracting Parties for their acceptance.

4. Such an amendment shall enter into force on a date to be determined by the Assembly at the time of its adoption unless, by a prior date determined by the Assembly at the same time, more than one-third of the Contracting Parties notify the Organization of their objection to the amendment. Determination by the Assembly of the dates referred to in this paragraph shall be by a two-thirds majority of those present and voting.

5. On entry into force any amendment shall, for all Contracting Parties which have not objected to the amendment, replace and supersede any previous provision to which the amendment refers.

6. The Secretary-General shall inform all Contracting Parties and Members of the Organization of any request and communication under this Article and the date on which any amendment enters into force.

Denunciation

ARTICLE VII

1. The present Convention may be denounced by a Contracting Party at any time after the expiry of five years from the date on which the Convention entered into force for that Party.

2. Denunciation shall be effected by the deposit of an instrument with the Organization. The Secretary-General shall inform all other Contracting Parties of the receipt of the instrument of denunciation and of the date of its deposit. 3. A denunciation shall take effect one year, or such longer period as may be specified in the instrument, after its deposit.