of this requirement, it is appropriate that this Department consider the terms of any proposed commitment prior to its execution.

II

As to limitation of liability, it appears that almost every commercial state has adopted some system of limiting the plenary liability of shipowners. Robinson, op. cit., p. 877. Our own Limitation of Liability Act provides that in a proceeding in our courts the owner of a vessel, whether American or foreign, may on certain conditions limit the monetary amount of his liability. R.S. 4283, as amended, 46 U.S.C. 183. The benefit of the limitation statute is confirmed to the United States in litigation in its courts by section 6 of the Suits in Admiralty Act and section 9 of the Public Vessels Act (act of March 3, 1925, c. 428, 43 Stat. 1112, 1113, 46 U.S.C. 789). You advise me that application of shipowner's limitation of liability under United States law would result in a maximum liability of four million dollars in the case of the Savannah. The English shipowner's limitation statute is much like our own. Section 503, Merchant Shipping Act, 1894, 57 & 58 Vict., c. 60, as amended (see 38 Halsbury's Statutes of England (2d ed.) 1091, 1093, and The Truculent, [1952] P.1).

In my opinion, it would not be inconsistent with our statutes for the United States to undertake not to resort to the admiralty limitation of liability statutes in the event of a nuclear incident involving the Savannah in British waters. There is nothing in our statutes expressly requiring such action. On the contrary, the congressional policy, as expressed in Public Law 85-602 (quoted in footnote 1, above), appears to contemplate that the United States would not attempt to limit its liability under admiralty principles and statutes.

The Atomic Energy Act of 1954 contains its own limitation of liability provisions with respect to nuclear activities. Section 170 e. of the act, added by Public Law 85-256 (1957), 71 Stat. 576, limits the aggregate liability for a single nuclear incident to the sum of $500 million plus the amount of financial protection required of the licensee. As stated in the report of the Joint Committee on Atomic Energy (H. Rept.

435, 85th Cong., 1st sess., pp. 1, 22), section 170 e. granted "limitation of liability for persons in the atomic energy program," and "[i]n order to provide a framework for establishing the limitation of liability, the Commission or any person indemnified is permitted to apply to the appropriate district court of the United States which has venue in bankruptcy matters over the site of the nuclear incident."

There can be no doubt that Congress intended the same limitation of liability to apply to the operation of the Savannah outside the United States. This is shown by Public Law 85-602 and its legislative history. That law applies solely to the Savannah, and it extended the indemnification authority conferred upon the Atomic Energy Commission to nuclear incidents involving the Savannah that might occur outside the United States. Similarly, it set forth the judicial procedures to be followed in asserting limitation of liability in United States courts in such cases. The report of the Joint Committee on Atomic Energy on Public Law 85-602 (S. Rept. 1883, 85th Cong., 2d sess., pp. 1-2) states as follows:

“* * *. The bill is limited to the construction and operation of that ship, and extends to it the same type of insurance and indemnity protection as approved by the Congress in Public Law 85-256 last year. The present Atomic Energy Act would cover the ship while it is within the United States, and this bill is necessary in order to provide indemnity protection during its operations outside of the continental limits of the United States. The bill authorizes the Atomic Energy Commission to enter into agreements for indemnification similar to those now being processed by the Commission for domestic atomic energy licenses, and also provides for limitation of liability similar to, and in the same amount, provided in present section 170e. of the Atomic Energy Act. ***

“* * *. In order to remove any possible roadblocks in the operation of the ship and in order to provide adequate protection to the public, the Joint Committee recommends that the provisions of the AEC Indemnity Act be extended to cover this ship, and that the Atomic Energy Commission administer the provisions of this bill in the same manner as the other provisions of the AEC Indemnity Act enacted by the Congress in 1957."

The provisions of Public Law 85-602 regarding indemnification and limitation of liability are broad enough in language to cover a nuclear incident wherever it might occur. This was the plain intent of Congress. It must be recognized, however, that in certain circumstances, such as a nuclear incident in foreign territory resulting in litigation in a foreign court, the court might feel impelled to apply the law of the forum rather than the provisions of Public Law 85602. Compare The Titanic, 233 U.S. 718 (1914). Such a result would come about not from a congressional purpose that the provisions of Public Law 85-602 should be restricted to domestic litigation but because of the application of conflicts of law principles by foreign courts, over which our Congress has no control. This problem of limitation of liability is sought to be resolved by the proposed international undertakings.

In enacting Public Law 85-602, Congress obviously intended to provide all that American law could provide to give possible victims of a nuclear incident involving the Savannah while outside the United States the same protection given earlier by Public Law 85-256 in connection with nuclear incidents occurring in the United States. The same indemnification authority was extended with respect to the Savannah to a nuclear incident outside the United States. In my judgment, Public Law 85-602 was intended to apply to such an incident, as far as domestic law could do so, the aggregate liability provision of Public Law 85-256, even though the litigation might be instituted in a foreign court. For these reasons, it is my opinion that an international commitment by the United States not to seek a more restrictive admiralty limitation of liability in a foreign court would not be inconsistent with the statutes of the United States. Indeed, for the United States to claim the smaller limit would tend to frustrate the clear congressional policy of extending the same benefits to litigants within or outside the United States, and to place "roadblocks" in the operation of the Savannah abroad, which Congress sought to remove.

It is not intended by the foregoing discussion to imply that courts would necessarily apply shipowner's limitation of liability statutes in the case of a nuclear incident resulting from the operation of the Savannah. Limitation of the liability of

the owner of a vessel for damages is allowed only where it was incurred without his privity or knowledge (R.S. 4283, supra), or, as stated in the British statute, without his "fault or privity." Section 503, Merchant Shipping Act, 1894, as amended. It is not clear that absence of fault or privity could be found in a case such as might be involved here, where the United States is both the owner of the vessel and responsible for its design and construction. The Truculent, supra. While there are, of course, no precedents concerning the availability of shipowner's limitation of liability in the case of damage resulting from a nuclear incident, the view has been expressed by admiralty lawyers of standing that it would not be allowed. See Matteson Report, International Union of Marine Insurance (September 15, 1960).

There is a necessary relationship between the question of limitation of shipowner's liability and the question of the owner's substantive liability where atomic radiation and other nuclear damage are involved. Strict liability, founded on the principle of Rylands v. Fletcher, [1868] L.R. 3 H.L. 330, would probably be imposed upon a person who causes damage resulting from the use of a nuclear installation. See Prosser, Law of Torts, 336 (1955). Indeed, as I am advised, some of the countries involved have already adopted the rule of strict liability by statute; the West German statute covers both land-based and maritime nuclear reactors; the British statute is thus far confined to land-based reactors.

Despite the record of safety that has been established in the operation of nuclear reactors, it must be recognized that the courts, which would only have occasion to consider the question as the aftermath of a nuclear incident, might well regard a reactor to be a dangerous instrumentality within the Rylands doctrine. Under this view, the owner-operator of a nuclear ship, such as the Savannah, might be held liable for nuclear damage without specific proof of negligence on his part, by reason of the fact that he set in motion a device capable of causing damage of a unique and extensive nature. In such a case the knowledge of the owner of, and his privity with, the central fact upon the basis of which his liability is

6 Mr. Matteson states: "In the opinion of many it is highly improbable that existing limitation of liability laws would protect him [the operator of a nuclear ship]."

founded, i.e., the existence of the nuclear device aboard the ship, might preclude successful assertion by him of shipowner's limitation of liability. Viewed in this light, it is far from clear that in connection with a nuclear incident arising from the operation of the Savannah in foreign waters the United States would have available to it the benefit of foreign limitation of liability laws."

Accordingly, an international agreement to waive the benefits of shipowner's limitation of liability statutes can hardly be considered as the relinquishment of an indisputable right. Moreover, even granting the possibility of a successful assertion of such limitation, it is my opinion that a waiver is not prohibited. As explained above, a waiver is not inconsistent with Public Law 85-602 and the purpose sought to be accomplished thereby.

It is conceivable, however, that the effect of a waiver of shipowner's limitation of liability in connection with a nuclear incident involving the Savannah outside the United States might expose the United States to judgments in excess of $500 million, the aggregate liability for a single nuclear incident set by the Atomic Energy Act. An international

'With respect to foreign litigation arising from a disaster on the high seas involving an American vessel, it is not certain that the foreign court would apply its own limitation of liability law or that of the United States. In The Titanic, 233 U.S. 718 (1914), supra, our Supreme Court held that in an admiralty proceeding brought in the United States based upon a disaster upon the high seas involving a British vessel, the courts of the United States must apply the United States Limitation of Liability Act and not that of the country whose flag the ship flies. It is not clear whether the forum rule would be applied by the English courts, and apparently the courts of continental countries have, at least on some occasions, not followed such a doctrine. See Note, 35 Col. L. Rev. 242, 252, n. 31 (1935). But, in any event, for the reason stated above, whether it is the foreign admiralty limitation of liability statute or our own statute that governs, it is questionable whether in the case of a nuclear incident the shipowner could successfully resort to either statute in order to limit the amount of his liability.

8

The aggregate liability is actually $500 million together with the amount of financial protection required of the licensee by the Atomic Energy Commission. In the Savannah indemnification agreement between the Commission and the Maritime Administration (see supra, p. 4), I am informed that the Commission has not required the Maritime Administration to furnish any financial protection. Accordingly, with respect to the Savannah, the aggregate liability is $500 million.