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Editor: Rod Sullivan
Profession: Maritime Attorney

Category: Safety at Sea

I think people who believe that "one world government" is upon us and that someday the United States is going to give up its sovereignty to the United Nations are crazy. At least I did think they were crazy. Now, I just say they are eccentric.

The reason that I went from "crazy" to "eccentric" was because I started looking at the conventions of the International Maritime Organization, and I came across a concept known as the "Tacit Acceptance Procedures."

In the United States, the President can make treaties but under the Constitution treaties must be be ratified by a 2/3rd's vote of the United States Senate. (Article II, Section 2) Since the Senate can't agree on anything the United States virtually never enters into shipping treaties. Consequently, most third world countries have more advanced admiralty and maritime laws than the United States does. For example, the U.S. is still operating under the Hague Rules of 1924, enacted as the Carriage of Goods by Sea Act of 1936 while the civilized world operates under the Hague-Visby Rules enacted in 1968 and amended in 1974. The U.S. operates under the 1855 Limitation of Shipowner's Liability Act while the civilized world operates under the Limitation of Liability Conventions adopted in 1976, as amended in 1996. In short, and you can quote me, the United States is backwards as a maritime power.

Because we are so backwards, perhaps it was inevitable that something like the "Tacit Acceptance Procedure" should be developed. It gives the world community, and U.S. regulators, a way to do an end run around an oblivious Senate.

The way the Tacit Acceptance Procedure works is this:

Instead of requiring that an amendment shall enter into force after being accepted by, for example, two thirds of the Parties, the "tacit acceptance" procedure provides that an amendment shall enter into force at a particular time unless before that date, objections to the amendment are received from a specified number of Parties.

In short, a U.N. organization can pass a law or regulation, the U.S. can fail to object in a timely fashion, and the U.N. law or regulation can become part of U.S. law because of "Tacit Acceptance." The unfortunate thing is that you can't even look these laws up in the United States Code or the Code of Federal Regulations. If you want to find them, you need to buy a U.N. publication which tells you what laws you are subject to.

Tacit Acceptance in the maritime arena was copies from other international conventions:

[The IMO] examined the procedures of four other UN agencies: the International Civil Aviation Organization (ICAO), the International Telecommunications Union (ITU), the World Meteorological Organization (WMO) and the World Health Organization (WHO). It showed that all of these organizations were able to amend technical and other regulations. These amendments became binding on Member States without a further act of ratification or acceptance being required.

If you are subject to the regulation, you have no opportunity to stand up and object. There are no "public hearings" except those held in far off place which you can't get to, and no one attends except bureaucrats from various world governments, and lobbyists.

Nevertheless, one day the Coast Guard can show up on your ship or boat, says "you are in violation of the IMO Convention on ___________________" and they can put you under arrest, or fine you, or seize your boat or ship.

Does it happen? I was at a convention of the Southeastern Admiralty Law Institute last May where a lecture was presented on new ship security regulations which went into force, and which were being enforced by the Coast Guard in the United States, without ever having become "U.S. law" as we traditionally perceive that term being used. The security regulations which were being enforced had never been proposed as law by the U.S. House of Representatives, and had never been adopted by the U.S. Senate, but you could nevertheless be arrested, hauled into a United States District Court, be tried, sentenced, and sent to a U.S. prison for violating them.

What else is uncomfortable about the process of "Tacit Acceptance?" Lots of organizations which can't get laws through the U.S. Congress could to use them to by-pass Congress altogether.

There is now a group called the "Joint IMO [International Maritime Organization]/ILO [International Labor Office] ad hoc expert working group on liability and compensation regarding claims for death, personal injury and abandonment of seafarers." (See http://www.ilo.org/public/english/dialogue/sector/techmeet/jmc01/jmcfr.htm#_Toc512675005) That such a committee even exists sends chills up my spine.

Could the United Nations usurp the entire U.S. scheme for compensating seamen for personal injuries (the Jones Act, the doctrine of unseaworthiness, and maintenance and cure) and wrongful death by including a "Tacit Acceptance" clause in a Convention on "Liability and Compensation Regarding Claims for Death, Personal Injury and Abandonment?" Why not?

I see room for abuse in the "Tacit Acceptance Procedure." What bothers me most of all is that almost no lawyer I know has even heard about it. Well, keep your eyes open.