tag v rogers case brief

No. L. Rev. P. 29(d) and Eleventh Circuit Rule 29-2, the attached amicus brief was prepared using WordPerfect 9 and contains 4,820 words of proportionally spaced type. Premier also asserts that the ADA should not apply to foreign-flag ships because of the possibility that flag States might develop accessibility standards for ships under their flag (Premier's Supp. If Congress adopts a policy that conflicts with the Constitution of the United States, Congress is then acting beyond its authority and the courts must declare the resulting statute to be null and void. It provided that the heirs, legatees or donees, without regard to their nationality, were entitled to succeed to such property and to retain or dispose of it subject only to such duties as would be theirs were they nationals of the contracting party within whose territories such property might lie. 36.304(b). Reply Br. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. 411, as amended, 50 U.S.C.App. See also The Chinese Exclusion Case (Chae Chan Ping v. U.S.), 1889, 130 U.S. 581, 599-600, 9 S.Ct. However, customary international law also supports regulation by the United States of foreign-flag ships entering its ports for commercial purposes. 227]. On June 14, 2001, this Court requested supplemental briefing by the parties regarding (1) whether customary international law establishes that the flag state of a vessel has the responsibility for regulating and implementing any changes to the physical aspects of a vessel and (2) whether application of the Americans with Disabilities Act to foreign-flag cruise ships would conflict with that law. Amendments emphasize the Government's right of seizure and confiscation. The War Claims Act of 1948 added 39 to the Act prohibiting the return of vested property to certain classifications of German nationals. stature and a reputation for quality and innovation that few universities can Appellant further contends that any seizure or confiscation of the property of an enemy national made by the United States contrary to the above declaration of international law is as null and void as though it were made in violation of the Constitution of the United States. Albert Karl TAG, Appellant, v. William P. ROGERS, Attorney General, and Dallas S. Townsend, Assistant Attorney General, Appellees. 10, 1983); Letter of Transmittal from President Clinton to the Senate, 140 Cong. 2132. Appellant further contends that any seizure or confiscation of the property of an enemy national made by the United States contrary to the above declaration of international law is as null and void as though it were made in violation of the Constitution of the United States. PORTS. (Emphasis supplied.) Background . 340 U.S. 367. 42 U.S.C. 39, 50 U.S.C.A.Appendix, 39. It was a war measure deriving its authority from the war powers of Congress and of the President. United States v. Chemical Foundation, Inc., 1926, 272 U.S. 1, 11, 47 S.Ct. We had supposed that the question here raised was set at rest in this court by the decision in the case of The Cherokee Tobacco, 11 Wall. Because Stevens' claim of being charged a discriminatory fare is not affected by any analysis of the effect of international law on the application of the ADA to foreign-flag cruise ships, there is no basis for this Court to reverse its earlier decision to vacate the district court's dismissal of Stevens' complaint. 99 0 obj It provided that the heirs, legatees or donees, without regard to their nationality, were entitled to succeed to such property and to retain or dispose of it subject only to such duties as would be theirs were they nationals of the contracting party within whose territories such property might lie. 0000008569 00000 n 1968), cert. legal profession. 64, 5 September 1951, 1107-1110, Chapter 6, Article 5, of the Bonn Convention, 7 U.S.T.1839, 1919, 1928, T.I.A.S. 2135-2136. United States Court of Appeals,District of Columbia Circuit. Accord The Paquete Habana, 175 U.S. 677, 712, 20 S.Ct. "McCullochv.Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963). 3. In that proceeding Tag did not rely upon the Trading with the Enemy Act or upon any procedure prescribed in it. "Coates v. City of Cincinnati,402 U.S. 611, 614 (1971). Finally, in 1958, Tag instituted a suit in the United States District Court for the District of Columbia against Attorney General Rogers and Assistant Attorney General Townsend, the appellees here. At all material times the appellant, Albert Tag, was a German national residing in Germany. See also The Chinese Exclusion Case (Chae Chan Ping v. U. S.), 1889, 130 U.S. 581, 599-600, 9 S. Ct. 623, 32 L. Ed. There is no power in this Court to declare null and void a statute adopted by Congress or a declaration included in a treaty merely on the ground that such provision violates a principle of international law. He claimed that those provisions are null and void because they are in conflict with international law and the Treaty of 1923. Vesting Order No. 63. 1870, dated July 21, 1943, 8 Fed.Reg. On the contrary, he attacked the validity of the provisions of the Act pursuant to which the seizures were made. Subscribers can access the reported version of this case. Pres. You're all set! (8) Specifically, Premier contends that applying the ADA to Premier would conflict with the International Convention for the Safety of Life at Sea (SOLAS)(Premier's Supp. These statements point the way to the answer in the present case. Before Mr. Justice . For example, the United Nations Convention on the Law of the Sea (UNCLOS), draws a distinction between the regulation of vessels in "innocent passage" through a State's territorial sea and vessels entering a State's internal waters. at 949. The 1952 Bonn Convention, among other things, provided that the Federal Republic of Germany thereafter would raise no objections against measures taken or to be taken with regard to property 'seized for the purpose of reparation or restitution, or as a result of the state of war * * *. L. & Com. 2000a-3(a). In 1956 the Director of that office dismissed the claim on the ground that Tag, being an enemy within the meaning of 2 of the Act. UNCLOS Art. 5499, 40 Stat. ADA Title III Technical Assistance Manual: Section III-1.2000(D) (1994 Supp.) Statement of the Case 2 I. Statutory Background of Child-Support . ; see also U.S. Const. Ports. Customary international law recognizes that "the law of the flag state ordinarily governs the internal affairs of a ship. Second, Premier's argument that the ADA regulations governing new construction and alteration of land-based facilities and standards for new construction and alteration of passenger vessels recommended to the Access Board by the Passenger Vessel Access Advisory Committee (PVAAC) conflict with SOLAS-mandated safety requirements and accessibility recommendations issued by the International Maritime Organization (IMO) is misleading. 40 Stat. 2000) 18, Bragdon v. Abbott, 524 U.S. 624 (1998) 12, *Brown v. Duchesne, 60 U.S. 183 (1856) 8-10, Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213 (1966) 16, Coates v. City of Cincinnati, 402 U.S. 611 (1971) 18, Committee of United States Citizens Living In Nicar. Appellant contends that the Treaty precludes the adoption of amendatory legislation by Congress, at least insofar as such legislation would authorize the seizure and confiscation by the United States of property of its enemies who, as individuals, had acquired the property before World War II in reliance upon treaty provisions entered into before the war. IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT, ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF FLORIDA, SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, RALPH F. BOYD, JR.Assistant Attorney General, DAVID K. FLYNNANDREA M. PICCIOTTI-BAYERAttorneysDepartment of JusticeP.O. SeeCommittee of United States Citizens Living In Nicar. He did not have an attorney, and he was not asked whether he needed or wanted representation. (6)Contrary to Premier's assertion, Brown supports application of the ADA to foreign-flag cruise ships entering U.S. ports for commercial purposes. Finally, in 1958, Tag instituted a suit in the United States District Court for the District of Columbia against Attorney General Rogers and Assistant Attorney General Townsend, the appellees here. For the reasons hereafter stated, we uphold the validity of the orders and the validity of those provisions of the Act, as amended, pursuant to which the orders were issued. Revealing the limited application of its holding, the Court specifically noted that "Congress may unquestionably, under its power to regulate commerce, prohibit any foreign ship from entering our ports, which, in its construction or equipment, uses any improvement patented in this country, or may prescribe the terms and regulations upon which such vessel shall be allowed to enter."Id. 0000003586 00000 n 1993) (same). Citation22 Ill.459 U.S. 899, 103 S. Ct. 198, 74 L. Ed. 839, 50 U.S.C.App. 32, 50 U.S.C.A.Appendix, 32. By the Constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. 604; White v. Mechanics Securities Corp., 269 U.S. 283, 300, 46 S.Ct. 1959) (upholding seizure of property by the Attorney General during World War II, pursuant to the Trading With the Enemy Act, despite customary . See e.g., President Reagan's Ocean Policy Statement, 19 Weekly Comp. 290, 302, 44 L.Ed. 0000004308 00000 n 7. 1870, dated July 21, 1943, 8 Fed.Reg. The Supreme Court has explained that economic regulation is subject to a less strict test "because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." In 1923 a Treaty between the United States and Germany was entered into which became effective in 1925. *United Nations Convention on the Law of the Sea, 21 I.L.M. The District Court, after hearing, denied Tag's motion for summary judgment and granted that of Rogers and Townsend for dismissal of the complaint. If Congress adopts a policy that conflicts with the Constitution of the United States, Congress is then acting beyond its authority and the courts must declare the resulting statute to be null and void. Appellant further contends that any seizure or confiscation of the property of an enemy national made by the United States contrary to the above declaration of international law is as null and void as though it were made in violation of the Constitution of the United States. Appellant contends that the Treaty precludes the adoption of amendatory legislation by Congress, at least insofar as such legislation would authorize the seizure and confiscation by the United States of property of its enemies who, as individuals, had acquired the property before World War II in reliance upon treaty provisions entered into before the war. 0000000016 00000 n We, accordingly, have made the same assumption. B at 660; Title III Technical Assistance Manual III-1.2000(D) (1994 Supp.) Before Mr. Justice BURTON, retired, and WILBUR K. MILLER and FAHY, Circuit Judges. SeeGrayned v. City of Rockford,408 U.S. 104, 108 (1972). He also became entitled to receive certain funds deposited to his credit in a checking account in a New York bank. For example, the Department of Justice Technical Assistance Manual provides that foreign-flag ships "that operate in United States ports may be subject to domestic laws, such as the ADA, unless there are specific treaty prohibitions that preclude enforcement." During her stay she is entitled to the protection of the laws of that place and correlatively is bound to yield obedience to them. Committee of U.S. Citizens Living in Nicaragua v. Reagan, No. 623, 32 L.Ed. Sign up for our free summaries and get the latest delivered directly to you. Referral of the issue to the administrative agency does not deprive the court of jurisdiction; it has discretion either to retain jurisdiction or, if the parties would not be unfairly disadvantaged, to dismiss the case without prejudice. Customary International Law Recognizes That Flag States And Port States Both Have Authority To Regulate Vessels6, B. The IMO, an organization established by the United Nations which sponsors the SOLAS conferences, has adopted accessibility guidelines related to the design and operation of new passenger ships. <>stream 44 Stat. 294(a). 36 Fed. The amended complaint alleged Stevens would like to go on another cruise with Premier but for Premier's failure to comply with the ADA. 565, 572 (1998). Pursuant to this Court's Order, dated June 14, 2001, the United States submits this brief, as amicus curiae, concerning (1) whether customary international law establishes that the flag state of a vessel has the responsibility for regulating and implementing any changes to the physical aspects of a vessel and (2) whether application of the Americans with Disabilities Act (ADA) to foreign-flag cruise ships would conflict with that law. E.The ADA's "Barrier Removal" Provision Is Not Vague. Amendments emphasize the Government's right of seizure and confiscation. 193, 90 L.Ed. Once a policy has been declared in a treaty or statute, it is the duty of the federal courts to accept as law the latest expression of policy made by the constitutionally authorized policy-making authority. 64, 5 September 1951, 1107-1110. 42 U.S.C. 0000008466 00000 n 11975; and Vesting Order No. Germany further guaranteed in the Bonn Convention that it would compensate the former owners of property so seized.15 The final action in this field is found in the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Germany.16 This reaffirmed the provisions of the Bonn Convention and added to them further agreement of complete cooperation. 0000001811 00000 n of Justice, were on the brief, for appellees. endobj V), 33, 50 U.S.C.A.Appendix, 33. Miss Marbeth A. Miller, Atty., Dept. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research. 504; Miller v. United States, 11 Wall. 42 U.S.C. 3425, Official Gazette of the Allied High Commission for Germany, No. of Justice, with whom Messrs. George B. Searls and Irwin A. Seibel, Attys., Dept. 411, 50 U.S.C.App. Miss Marbeth A. Miller, Atty., Dept. In that proceeding Tag did not rely upon the Trading with the Enemy Act or upon any procedure prescribed in it. In determining whether the patent laws should apply to the ship's master, the Court noted that the authority under which Congress enacted the patent laws provides that Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.Ibid. 529 U.S. at 97. 1 et seq., 50 U.S.C.A.Appendix, 1 et seq. Nevertheless, application of the ADA to foreign-flag cruise ships does not conflict with the principle of reciprocity. 193, 90 L.Ed. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. Art. 116, 70 L.Ed. However, as mentioned above, ADA regulations specifically advise courts that no relief should be ordered that would violate any international treaties. It made no distinction between property acquired before or after the beginning of the war. "The validity of this act [the Chinese Exclusion Act of October 1, 1888, 25 Stat. 411, as amended, 50 U.S.C.App. These statements point the way to the answer in the present case. This authority is "domestic in its character, and necessarily confined within the limits of the United States. of New Orleans, Inc., 444 U.S. 232, 246 (1980) ("a complaint should not be dismissed unless 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'") (quotingConleyv.Gibson, 355 U.S. 41, 45-46 (1957)). It did not provide for the reimbursement of enemy owners for their property when thus confiscated. 3303 are satisfied, the Coast Guard will continue to accept a valid certificate of inspection from the ship's flag State. 44 Stat. at 104. See also The Chinese Exclusion Case (Chae Chan Ping v. U.S.), 1889, 130 U.S. 581, 599-600, 9 S.Ct. 3593. He asked also for the return, with interest, of whatever monies had been vested. 1959) case opinion from the U.S. Court of Appeals for the District of Columbia Circuit The Court did not address whether the "principle of reciprocity" had any legal significance in the proceeding. Such legislation will be open to future repeal or amendment. Stevens filed a motion for reconsideration in which she tendered a proposed amended complaint. However, customary international law also recognizes the authority of a port state to regulate ships entering its ports for commercial purposes. is part of the law of United States. 268, 305 et seq., 20 L. Ed. 95 0 obj However, the Government in arguing this case has assumed that Article IV was applicable in time of war, Request a trial to view additional results, Natural Resources Defense Council, Inc. v. Nuclear Regulatory Com'n, No. Appellant contends, however, that there is now a practice amounting to an authoritative declaration of international law forbidding the seizure or confiscation of the property of enemy nationals during time of war, at least in the case of property acquired by the enemy national before the war and in reliance upon international agreements between the nations concerned. 'This rule of international law is one which prize courts, administering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or other public act of their own government in relation to the matter.' The Court further observed that the patent laws themselves are intended to "secure to the inventor a just remuneration from those who derive a profit or advantage, within the United States, from his genius and mental labors. 320, the Court found that peaceful fishing vessels were exempt from confiscation by reason of international law. 1, 8, Cl. PORTS 5, A. In 1938 he became entitled to receive, for life, the income from a trust fund of $100,000 established in New York City under the will of Anna Tag, an American citizen, who had died in 1936. 193; Stoehr v. Wallace, 255 U.S. 239, 245, 41 S. Ct. 293, 65 L. Ed. (U.S. Br. The objection that the act is in conflict with the treaties was earnestly pressed in the court below, and the answer to it constitutes the principal part of its opinion. Petition for Rehearing En Banc Denied June 12, 1959. Brown v. United States, 8 Cranch 110, 122, 3 L. Ed. He also became entitled to receive certain funds deposited to his credit in a checking account in a New York bank. 574 (S.D. A treaty, it is true, is in its nature a contract between nations and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. See "International Maritime Organization: What it is, What it does, How it works" at 22 (Premier Supp. Whatever force appellant's argument might have in a situation where there is no applicable treaty, statute, or constitutional provision, it has long been settled in the United States that the federal courts are bound to recognize any one of these three sources of law as superior to canons of international law.8 The latter is the situation here and the only arguable issue is whether the provisions enacted in the Treaty of 1923, or the provisions contained in the Trading with the Enemy Act, as subsequently amended, shall be recognized by the courts. 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