Albert Karl TAG, Appellant, v. William P. ROGERS, Attorney General, and Dallas S. Townsend, Assistant Attorney General, Appellees. Deprivation of the right to fair warning can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that . 36 Fed.Rep. 1037, 1055 (1964). 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. In fact, the Bonn Convention gave support to Allied High Commission Law No. 1960 Duke University School of Law "13 It provided also that German nationals thereafter would not assert claims of any description against the allies or their nationals arising out of actions taken or authorized by such allies because of the existence of a state of war in Europe. It was a war measure deriving its authority from the war powers of Congress and of the President. 431. 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. Enforcement of a U.S. law generally cannot be challenged in federal court on the grounds that it violates customary international law. On the contrary, he attacked the validity of the provisions of the Act pursuant to which the seizures were made. 8. Before Mr. Justice BURTON, retired, and WILBUR K. MILLER and FAHY, Circuit Judges. 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. 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. The jurisdiction attaches in virtue of her presence, just as with other objects within those limits. 45,584, 45,600 (1991). C.Application Of The ADA Does Not Violate The Primary Jurisdiction Doctrine. Amendments emphasize the Government's right of seizure and confiscation. Requiring cruise ships providing services to U.S. passengers at U.S. ports to ensure barriers to accessibility have been removed is an entirely different matter. This case concerns the validity of certain vesting orders issued in 1943 and 1949 in accordance with the Trading with the Enemy Act.1 Their validity is attacked principally on the ground that they were issued in alleged violation of the 1923 Treaty of Friendship, Commerce and Consular Rights between the United States and Germany.2 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. The panel did not address "whether the treaty obligations of the United States might, in some cases, preclude or limit application of Title III." 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. The final action in this field is found in the 1956 Treaty of Friendship, Commerce and Navigation between the United States and Germany. 193; Stoehr v. Wallace, 255 U.S. 239, 245, 41 S.Ct. 839, 50 U.S.C.App. 101 0 obj 96 0 obj 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. "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. 623, 32 L.Ed. Br., App. 20. Plaintiff Tammy Stevens, who uses a wheelchair for mobility, brought suit under Title III of the ADA, 42 U.S.C. 75 The Paquete Habana, 175 U.S. 677, 708, 20 S.Ct. at 1243 n.8. R. App. (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. A .gov website belongs to an official government organization in the United States. 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. Doc. In 1943 and 1949 his rights to these respective funds were vested in the Attorney General of the United States, as successor to the Alien Property Custodian, in the manner prescribed by the Trading with the Enemy Act.3 On October 18, 1954, Tag filed in the Office of Alien Property notice of his claim to the property and interests so vested. Premier filed a petition for rehearing and petition for rehearing enbanc, raising,inter alia, that rehearing is needed to address whether applying the ADA to foreign-flag vessels conflicts with customaryinternational law (Premier Petition for Reh'g at 5-10). 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. In the light of the foregoing, appellant can invoke neither international law nor the 1923 Treaty with Germany to support his claim and the judgment of the District Court is. It made no distinction between property acquired before or after the beginning of the war. He claimed that those provisions are null and void because they are in conflict with international law and the Treaty of 1923. 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, was not entitled to the return of the vested property or interests under 32 of the Act. 85 Id. DSS Opp. Stevens filed a timely notice of appeal. 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. Quimbee has over 16,300 case briefs (and counting) keyed to 223 casebooks https://www.quimbee.com/case-briefs-. International Treaties Do Not, As A Matter Of Law, Preclude Port States From Regulating The Physical Structure Of Foreign-Flag Ships Entering Their Ports 8, C. Congress Has The Authority To Regulate Foreign-Flag Ships Engaged In Commerce At U.S. Stevens' claim that Premier violated the ADA when it charged her a higher fare for an accessible cabin, which implicates neither the physical structure of the vessel nor the internal affairs of the ship, is an independent cause of action worthy of being adjudicated. Facts: That law provided that the right, title and interest of German nationals in German external assets were extinguished as of the time of their vesting. 12188; 42 U.S.C. Box 66078Washington, DC 20035-6078(202) 514-6441, CERTIFICATE OF INTERESTED PARTIES & CORPORATEDISCLOSURE STATEMENT. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case the last expression of the sovereign will must control.' 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. Customary international law generally defers to a State to regulate the physical structure of ships under its flag. And such is, in fact, the case in a declaration of war, which must be made by Congress, and which, when made, usually suspends or destroys existing treaties between the nations thus at war. 1261, 1273 (1985). 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. 13730, dated August 25, 1949, 14 Fed.Reg. The ADA's regulations give 21 examples of steps facilities can take to remove barriers. 504; Miller v. United States, 11 Wall. 1246, 50 U.S.C.App. In that proceeding Tag did not rely upon the Trading with the Enemy Act or upon any procedure prescribed in it. 18, 21 I.L.M. 1261 (1985): SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS CURIAE. 36 Fed. 0000008252 00000 n endobj "United States v. Locke, 529 U.S. 89, 102 (2000); see also 46 U.S.C. He also became entitled to receive certain funds deposited to his credit in a checking account in a New York bank. 8. 3593. 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. 0000008569 00000 n 1 et seq., 50 U.S.C.A.Appendix, 1 et seq. DSS filed a brief with this Court affirm-ing that it did not participate in the proceedings below and is not a party to this appeal. 0000001911 00000 n The District Court, after hearing, denied Tag's motion for summary judgment and granted that of Rogers and Townsend for dismissal of the complaint. 55 Stat. 165. Such legislation will be open to future repeal or amendment. 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. 5. Co., 352 U.S. 59, 63-64; Ricci v. Chicago Mercantile Exch., 409 U.S. 289, 291, 302 (1973);Port of Boston Marine Terminal Ass'n v.Rederiaktiebolaget Transatlantic,400 U.S. 62, 65, 68 (1970). 1068. 0000001355 00000 n as Amicus at 10). 623, 32 L.Ed. 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)). PORTS 5, A. Mr. Charles Bragman, Washington, D.C., for appellant. 356, 836 P.2d 1308 (1992) ( Rogers I ). <> Defendant was handcuffed, placed in a patrol car and taken to the robbery squad in Mineola. SeeMcLainv.Real Estate Bd. 11975; and Vesting Order No. 50 U.S.C.App. 32, 50 U.S.C.A.Appendix, 32, 50 U.S.C.App.(Supp. 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. 565, 572 (1998) 6, Commentary - The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation of Part XI, Feb. 1995, 34 I.L.M. At all material times the appellant, Albert Tag, was a German national residing in Germany. InCunard, the Supreme Court held: C. Congress Has The Authority To Regulate Foreign-Flag Ships Engaged In Commerce At U.S. 275." 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. Boca Raton, Florida 33433-3455Miami, Florida 33131. 40 Stat. 2, 50 U.S. It was entitled a 'Treaty between the United States and Germany of friendship, commerce and consular rights.' 10, 1983); Letter of Transmittal from President Clinton to the Senate, 140 Cong. <>stream at 103. 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. of New Orleans, Inc., 444 U.S. 232 (1980) 4, Mitchell Coal & Coke Co. v. Pennsylvania R.R. 839, 50 U.S.C.App. 3303 (providing that the United States will accept a certificate of inspection by a foreign country that is a party to SOLAS and which accords reciprocity to U.S. vessels visiting its country). Rogers asked a teller to deposit $80 from the check into an account and give Rogers the remaining amount in cash. He asked the court to enjoin Rogers and Townsend from denying his claims to the vested funds. 39, 50 U.S.C.A.Appendix, 39. 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,4 was not entitled to the return of the vested property or interests under 32 of the Act.5 Moreover, the time within which to seek a review6 of the Director's dismissal of Tag's claim had expired before Tag filed either a claim or a suit to recover the property. at 949. SeeBenzv.Compania Naviera Hidalgo, S.A.,353 U.S. 138, 142 (1957). 1988) 11, *Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923) 7, EEOC v. Arabian Amer. 1. 3258. its academic programs and professional schools together have attained an international 28,361 (1994). 574 (S.D. Matter of Extradition of Demjanjuk, Misc. It must be conceded that the act of 1888 is in contravention of express stipulations of the treaty of 1868 and of the supplemental treaty of 1880, but it is not on that account invalid or to be restricted in its enforcement. 0000001376 00000 n United States v. Chemical Foundation, Inc., 1926, 272 U.S. 1, 11, 47 S.Ct. 1, 8, Cl. The War Claims Act of 1948 added 39 to the Act prohibiting the return of vested property to certain classifications of German nationals. . Box 66078Washington, DC 20035-6078(202) 514-6441. 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. See also Larry W. Kaye & Jeffrey B. Maltzman,'Twas the Night Before Regulations: Foreign-Flag Cruise Ships and theADA, 75 Tul. XVI. H|M0?H_I V,Vl1Jq|lUT3y"zRl> Law Offices of Matthew W. Dietz, P.L.1227 25thStreet, N.W. 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." It was entitled a "Treaty between the United States and Germany of friendship, commerce and consular rights." 320, the Court found that peaceful fishing vessels were exempt from confiscation by reason of international law. 0000008052 00000 n Further, the fact that a ship sails under a foreign-flag or is registered in a foreign country does not, in the absence of a clear source of law to the contrary, exempt it from generally applicable laws of the countries in which it does business. 0000008785 00000 n 2132, as amended, 49 Stat. Defendant Herbert L. Rogers was arrested in his home on Dec. 16, 1975 at about 10:15 a.m. as a suspect in a liquor store robbery committed by two youths on Feb. 7, 1975. The owner sought compensation from the United States, asserting that customary international law prohibits the seizure of boats engaged in coastal fishing. V), 33, 50 U.S. C.A.Appendix, 33, Markham v. Cabell, 1945, 326 U.S. 404, 413 et seq., 66 S. Ct. 193, 90 L. Ed. 94 30 In fact, the Bonn Convention gave support to Allied High Commission Law No. 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. 102 0 obj State v. Rogers , 313 Or. (U.S. Br. Melissa D. Conway, Cleveland, Ohio, 92/70 speed, fine $110, court costs $130, case was waived by defendant. However, customary international law also supports regulation by the United States of foreign-flag ships entering its ports for commercial purposes. at page 627. Ports are considered part of a State's internal waters. Under this standard, the "barrier removal" provision of the ADA would be vague only if it is so indefinite in its terms that it fails to articulate comprehensible standards to which a person's conduct must conform. 504], as already mentioned, is assailed, as being in effect an expulsion from the country of Chinese laborers in violation of existing treaties between the United States and the government of China, and of rights vested in them under the laws of Congress. 504; Miller v. United States, 11 Wall. CUSTOMARY INTERNATIONAL LAW DOES NOT PROHIBIT THE UNITED STATES FROM REGULATING THE DESIGN AND CONSTRUCTION OF SHIPS ENTERING U.S. We have reversed sentences of death in . As noted in the United States' Reply Brief to this Court,application of these treaties was not properly before the panel and that this issue should be initially assessed by the district court (U.S. Subscribers can access the reported version of this case. 44 Stat. 2, 50 U.S.Appendix, 2, 50 U.S.C.App. 268, 305 et seq., 20 L.Ed. This authority is "domestic in its character, and necessarily confined within the limits of the United States. 7 U.S.T. You can explore additional available newsletters here. Sign up for our free summaries and get the latest delivered directly to you. 567 (1846), was a case in which the Supreme Court of the United States holding that a white man, adopted into an Indian tribe, does not become exempt from the enforcement of the laws prohibiting murder. 2d 160 (1982) Brief Fact Summary. Tag's appeal is from those orders. During her stay she is entitled to the protection of the laws of that place and correlatively is bound to yield obedience to them. at 700. 0000002010 00000 n No. endobj Requiring foreign-flag cruise ships to remove barriers to accessibility in order to provide services to people at U.S. ports is not inconsistent with these principles of customary international law. See 42 U.S.C. 1959) case opinion from the U.S. Court of Appeals for the District of Columbia Circuit 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. No. Although the panel's request for supplemental briefing did not specifically include a request for briefing on whether application of the ADA would conflict with specific international treaties,Premier contends that such a conflict will occur. Contact the Webmaster to submit comments. 5652, 5670, T.I.A.S. V), 33, 50 U.S.C.A.Appendix, 33, Markham v. Cabell, 1945, 326 U.S. 404, 413 et seq., 66 S.Ct. United States v. Chemical Foundation, Inc., 1926, 272 U.S. 1, 11, 47 S.Ct. 0000003485 00000 n 604; White v. Mechanics Securities Corp., 269 U.S. 283, 300, 46 S. Ct. 116, 70 L. Ed. Premier misapplies the recent Supreme Court decision inLocke. (U.S. Br. 1037 (1964) 16, Larry W. Kaye & Jeffrey B. Maltzman,'Twas the Night Before. The court applied the presumption against extraterritoriality set forth in EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991), because the cruise ship is owned by a foreign company and sails under a foreign-flag (R. 11 at 3-4). +H1V{f{RS}M;C1wVF#!u][:-p*e$(RB5VIhs*bQ +OrQ>eLsL@8&!e1& Bpde2GWv? B at 660; Title III Technical Assistance Manual III-1.2000(D) (1994 Supp.) 40 Stat. "Benz, 353 U.S. at 142; accordCunard S.S. Co.v.Mellon, 262 U.S. 100, 124 (1923);Maliv.Keeper of the Common Jail, 120 U.S. 1, 12 (1887);Armement Deppe, S.A.v.United States, 399 F.2d 794 (5th Cir. Its mission is to prepare students for responsible and productive lives in the 2. You also get a useful overview of how the case was received. He asked also for the return, with interest, of whatever monies had been vested. 5652, 5670, T.I. SeeMcCullochv.Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963). C). Citation22 Ill.459 U.S. 899, 103 S. Ct. 198, 74 L. Ed. 2132. Subscribers are able to see a list of all the documents that have cited the case. In that proceeding Tag did not rely upon the Trading with the Enemy Act or upon any procedure prescribed in it. United States District Court of Northern District of Ohio. At all material times the appellant, Albert Tag, was a German national residing in Germany. trailer Premier also claims that enforcing Title III against foreign-flag cruise ships that enter U.S. ports would be at odds with the principle of reciprocity (Premier's Supp. It did not provide for the reimbursement of enemy owners for their property when thus confiscated. The Act as passed in 1917 authorized the President, in time of war, to seize and confiscate enemy property found within the territories of the United States.7 It applied to property owned by nationals of an enemy nation as well as to property owned by an enemy nation itself. Such recommendations "provide guidance in framing national regulations and requirements," but "are not usually binding on Governments." 411, 50 U.S.C.App. 63.14 That law provided that the right, title and interest of German nationals in German external assets were extinguished as of the time of their vesting. At all material times the appellant, Albert Tag, was a German national residing in Germany. 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. 44 Stat. However, as mentioned above, ADA regulations specifically advise courts that no relief should be ordered that would violate any international treaties. 42 U.S.C. 12184 as "specified transportation services." The District Court, after hearing, denied Tag's motion for summary judgment and granted that of Rogers and Townsend for dismissal of the complaint. There is a further material consideration. 268, 305 et seq., 20 L. Ed. 1870, dated July 21, 1943, 8 Fed.Reg. The inexperienced teller mistook the date on the check as the amount payable to Rogers. 193, 90 L.Ed. Despite being asked, Elliott refused to cease ringing the bell and Rogers sued for the damage that the noise was . 55 Stat. Mr. Charles Bragman, Washington, D. C., for appellant. 2135-2136. 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. 1261, 1274 (1985). Facts. See also The Chinese Exclusion Case (Chae Chan Ping v. U.S.), 1889, 130 U.S. 581, 599-600, 9 S.Ct. 0000008150 00000 n See 28 C.F.R. There is no constitutional prohibition against confiscation of enemy properties. 275." The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. Miss Marbeth A. Miller, Atty., Dept. 32, 50 U.S.C.A.Appendix, 32. 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. Head Money Cases, (Edye v. Robertson), 1884, 112 U.S. 580, 597, 599, 5 S. Ct. 247, 253, 28 L. Ed. The Cherokee Tobacco, 1870, 11 Wall. He presented some evidence of his inability to work, but the court made no finding as to Turner's indigent status. 12, 13, Craig Allen,Federalism in the Era of International Standards (Part II),29 J. Mar. The Treaty did not state whether such freedom would be effective in time of war between the contracting parties. 1 The three dogs were shot by members of the Rusk County Sheriff's Department on June 12 and 13, 1979 while Rob was on an extended vacation with his father. at 17-19). Art. Miss Marbeth A. Miller, Atty., Dept. endobj at the national and international levels in efforts to improve the law and legal Petition for Rehearing En Banc Denied June 12, 1959. Before Mr. Justice BURTON, retired,* and WILBUR K. MILLER and FAHY, Circuit Judges. It recognized in Article IV,9 in general terms, the right of nationals of the respective contracting parties freely to dispose of personal property within the territories of the other party. SeeCarnation Co. v. Pacific Westbound Conference,383 U.S. 213, 222-223 (1966);Mitchell Coal & Coke Co. v. Pennsylvania R.R. (Supp. 0000001582 00000 n 0000008881 00000 n Synopsis of Rule of Law. 296, 27 L.Ed. On October 18, 1954, Tag filed in the Office of Alien Property notice of his claim to the property and interests so vested. %%EOF It was a war measure deriving its authority from the war powers of Congress and of the President. 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.