IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
HER MAJESTY THE QUEEN IN )
RIGHT OF CANADA, ) Civil Action No. 99-3025
Plaintiff, ) Section F
v. ) Mag. 5
THE PANAMA CANAL COMMISSION, ) Judge Martin Feldman
I, Robert E. Dalton, do hereby state as follows:
I am now, and have been since August 1990, the Assistant Legal Adviser for Treaty Affairs of the United States Department of State, Washington, D.C. The Treaty Affairs Office oversees the conclusion, Congressional reporting, publication, and maintenance of records concerning United States treaties and other international agreements. In this regard, it keeps and preserves records of treaties and other international agreements concluded by the United States of America, in accordance with regulations found in
11 Foreign Affairs Manual Part 750 and 22 C.F.R. Part 181.
My responsibilities as head of the Department's Treaty Affairs Office require that I be familiar with the practice of the United States in matters concerning the making, interpretation, and application of treaties and other international agreements. My responsibilities also include maintaining the official treaty records of the United States and publishing the annual volume entitled Treaties in Force, which is an official publication of the Department of State that lists treaties and other international agreements in force between the United States and other countries as of the date of publication.
I have been asked, in connection with the claim asserted by the Government of Canada (GOC) against the Panama Canal Commission (PCC) for the incident surrounding the HCMS Yellowknife, about the applicability of the "Agreement between the United States of America and Canada respecting waiver of certain claims involving government vessels" ("the Agreement"), effected by an exchange of notes at Washington September 28, November 13 and 15, 1946, and which entered into force on November 15, 1946. A copy of the Agreement is attached at Tab 1.
Article 7 of the Agreement governs its duration and termination:
This Agreement shall remain in force until the expiration of six months from the day on which either Government shall have given notice in writing to the other Government of an intention to terminate the Agreement.
I have reviewed the official records of the United States concerning the Agreement, and find no evidence that the United States has given or received a notice of termination pursuant to Article 7. Accordingly, I believe that the Agreement remains in force, and that the latest edition of Treaties in Force accurately reflects the status of this international agreement.
I have been asked to express an opinion on the applicability of the Agreement to the claim asserted by the GOC against the PCC in connection with an incident on February 20, 1998, in which a Canadian government vessel -- the HCMS Yellowknife -- suffered damages when it struck the locks at Pedro Miguel in the Panama Canal.
The Agreement is styled as an agreement respecting "waiver of certain claims involving government vessels." Article 1 of the Agreement, in relevant part, defines the term "Government vessel" to mean "a vessel (including a vessel of war), flying-boat or drydock owned by ... either Government ...." (The definition also articulates certain exceptions to the term "Government vessel" that are not applicable here). The Parties are in agreement that the HCMS Yellowknife is a vessel "owned by" the Government of Canada. Accordingly, it qualifies as a Government vessel under the Agreement.
Article 2 of the Agreement provides that "[t]he Government of Canada and the Government of the United States of America agree that each shall waive all those legal maritime claims by either Government against the other Government or any servant, agent, or instrumentality of the other Government or any Government vessel in respect of collision, ... negligent navigation or negligent management of the said Government vessel ...." (Article 2 goes on to state that its provisions are subject to those of Articles 3 and 4, but those Articles are not relevant to the instant matter).
9. For the reasons articulated below, I believe the Agreement was intended to cover not only collisions between government vessels but also collisions between a government vessel and a stationary object. Nothing in the Agreement supports the view that it applies only to collisions between vessels. In this regard, the differences between the Agreement and a predecessor agreement, signed in 1943, are instructive. The 1943 agreement, entitled "Waiver of Claims Arising as a Result of Collisions between Vessels of War," was effected by an exchange of notes at Washington May 25 and 26, 1943. (A copy of this agreement is attached at Tab 2). The scope of that earlier agreement was in fact limited to collisions between vessels, and more specifically, to "collisions between United States warships and ships of the Royal Canadian Navy." (See Diplomatic Note from Secretary of State Cordell Hull to Canadian Minister Leighton McCarthy, dated May 25, 1943 (Tab 2)). This understanding was subsequently formally confirmed by the Government of Canada in Diplomatic Note No. 589 from Canadian Minister M.M. Mahoney to Secretary of State Cordell Hull, dated November 11, 1943, in reply to Secretary Hull's Diplomatic Note, dated September 3, 1943 (attached at Tab 3). Article I of the 1943 agreement stated in its entirety as follows:
The Government of the United States of America and the Government of Canada agree that when a vessel of war of either Government shall collide with a vessel of war of the other Government, resulting in damage to either or both of such vessels, each Government shall bear all the expenses which arise directly or indirectly from the damage to its own vessel, and neither Government shall make any claim against the other Government on account of such damage or expenses. (emphasis added).
10. Article 6 of the 1946 Agreement, however, expressly terminated and superseded the 1943 agreement. Unlike the 1943 Agreement, the 1946 Agreement was drafted without specific limitation to vessel-to-vessel incidents, and nowhere does its text make a reference to the phrase "between vessels" or words to that effect. (I note that the reference to "collisions between vessels of war" in the introductory paragraph of the Agreement clearly is intended to describe the scope of the 1943 agreement, but does not purport to characterize the scope of the superseding 1946 Agreement). Rather, a plain reading of the language in Article 2 of the 1946 Agreement supports the view that it covers claims by one Government against the other Government with respect to any collision involving a Government vessel of either Government.
We have found no evidence that the negotiators of the Agreement intended the term "collision" to bear anything other than the ordinary, contemporaneous meaning of the term. (See e.g., definition of "collision" in James A. Ballentine, Law Dictionary (Rochester, 1948): "[t]he act of colliding; a striking together, or against.") (attached at Tab 4). Although in maritime parlance the term "allision" is used in some contexts -- the asserted difference being that an "allision" is the striking of a vessel against an object other than a vessel, whereas a "collision" is the striking of a vessel against another vessel -- there is no indication that the term "collision" was used in the 1946 agreement in any way other than its ordinary meaning. There is also no evidence that the Parties, in using the term "collision," intended to exclude cases of "allision."
12. Based on the language of the Agreement in contrast to that of the 1943 predecessor agreement, as well as some of the contemporaneous written exchanges between the Governments of the United States and Canada (see discussion below), I believe the principal purpose of the revised agreement was precisely to extend the scope of application and number of incidents with respect to which claims could be deemed waived, including incidents involving collisions between vessels and stationary objects. I note that this conclusion does not rest on the notion that the term "government vessels" in Article 1 includes locks (which, concededly, it does not).
13. In research conducted at the U.S. National Archives and Records Administration, my office reviewed contemporaneous official written exchanges between the Government of the United States and the Government of Canada regarding the 1946 Agreement. In one such exchange, the Government of Canada itself articulated the view that the Agreement encompassed "collisions between vessels and stationery [sic] objects." I am referring specifically to the Government of Canada's Diplomatic Note No. 319 (dated August 21, 1947) (attached at Tab 5). In that Diplomatic Note, the Government of Canada agreed to an earlier suggestion from the Government of the United States for the use of "waiver certificates" to implement the 1946 Agreement, and in that regard stated the following:
This waiver certificate has been taken under consideration by the Canadian Government which now proposes a slightly modified certificate, copies of which are attached.
It is suggested that it would be impracticable to have one form of waiver certificate to cover all cases. A general form is recommended for the following four categories of claims:
(1) Collisions between two vessels
(2) Collisions between a vessel and a stationery (sic) object
(4) Cargo claims.
(Emphasis added). See Tab 5.
It is clear from the foregoing Diplomatic Note (which is the most formal form of written communication between two Governments) that at the time the Agreement was negotiated, the Government of Canada did not consider the Agreement's scope to be limited only to collisions between vessels.
14. Furthermore, the view that the Agreement encompasses collisions between vessels and stationary objects is supported by subsequent practice of the Parties. For example, an internal State Department document dated May 8, 1952 (attached at Tab 6) discusses the applicability of the 1946 Agreement to an incident in which the Canadian National Railways ("CNR") sought damages from the United States in connection with an incident in which one of CNR's piers was struck by a U.S. Government vessel. The document contains no suggestion that the 1946 Agreement might be inapplicable because the incident involved a pier; rather, the issue in controversy appeared to be exclusively whether or not the CNR was an agency or instrumentality of the Canadian Government. Concluding that the CNR was indeed such an agency or instrumentality, the U.S. State Department Office of Treaty Affairs reasoned that the Agreement would apply but that the United States could nevertheless settle the small claim "if it [could] be done without prejudice to the assertion of all rights of the United States under the agreement in any disputes that may arise in the future."
15. Aside from the argument based on the term "collision" in Article 2 of the Agreement, that Article includes a separate, additional basis for the conclusion that the GOC claims are waived pursuant to the terms of the Agreement. Article 2 states that the Parties waive any claims against the other Government with respect to "negligent navigation or negligent management" of a Government vessel. It is undisputed that PCC operatives were in control of the HCMS Yellowknife at the time of the incident, and that such operatives caused the damage that are the basis of the GOC's current claim. The PCC officials were "servants, agents, or instrumentalities" of the U.S. Government. The incident that caused damages to the HCMS Yellowknife is also admittedly attributable to the "negligent navigation" or "negligent management," or both, of the vessel by PCC operatives. Accordingly, under the language of Article 2, the claim arising from the HCMS Yellowknife incident must be deemed waived as a claim involving the negligent navigation and/or negligent management of a "Government vessel" as defined in Article 1.
16. In sum, I conclude that the 1946 waiver of claims agreement between the United States and Canada is applicable to the claim asserted by the Government of Canada against the Panama Canal Commission in connection with the February 1998 incident in the Panama Canal involving the Canadian vessel HCMS Yellowknife. As previously noted, this conclusion does not rest on the notion that the term "government vessels" in Article 1 includes locks. Rather, it derives from (a) the view that the language of the Agreement does not require a collision "between vessels," but rather any collision involving a government vessel (in this case, the HCMS Yellowknife) for which the other government is responsible (a position which has been articulated by the Canadian Government itself in contemporaneous official correspondence with the Government of the United States); and (b) the interpretation that the language in Article 2 of the Agreement regarding "negligent navigation" or "negligent management" of a vessel applies to the circumstances of this case.
17. I declare that the foregoing is true and correct to the best of my knowledge and belief.
Robert E. Dalton
Assistant Legal Adviser
for Treaty Affairs
March 11, 2000