navigation, vessel inspection, and coast wise laws, particularly those which were restrictive of foreign shipping, in order to help build the commerce of the Islands." The Legislative Assembly of the Islands, supported by the Departments of Commerce and Interior, requested Congress to provide such relief.19 The Interior Department's letter of July 25, 1939, summarized the joint views on the situation:

"The need for such legislation is very great. In St. Thomas, the principal city of the Virgin Islands, more persons depend for their livelihood upon shipping than upon any other business and grave economic consequences are feared from the application and enforcement of these laws, which are largely unsuited to the peculiar local conditions prevailing in the Virgin Islands. Already some shipping has been lost and it is felt in local shipping circles that more serious injury will follow. Most of the shipping in the port of St. Thomas is made up of foreign ships calling at that port for coal and oil bunkers. This business is in competition with foreign ports at Jamaica, Trinidad, and elsewhere. There is much concern over the possibility that the restrictive provisions of the navigation laws will adversely affect, if not entirely divert, this important busi

Adopting these views on the need for the legislation as well as its proposed form,20 Congress revised section 4 of the Organic Act. The provision for applicability of Federal laws for the preservation of the interest of navigation and commerce was eliminated, and the Legislative Assembly was empowered to enact navigation, boat inspection, and safety laws of local application. However, as revised, the section reserved to the President power to make applicable such of the navigation, vessel inspection, and coastwise laws of the United States as he might find to be in the public interest.21

At this point in 1939, unless made applicable by a specific provision of law, none of the navigation, vessel inspection, or

17 S. Rept. 808, 76th Cong., 1st sess. (1939), and H. Rept. 1314, 76th Cong., 1st sess. (1939), both on S. 2784.

18 Id.

10 H. Rept. 1314, supra, p. 2.

20 Note 17, supra.

21 S. 2784, 76th Cong., 1st sess., became P.L. 313, approved August 7, 1939, 53 Stat. 1242, 48 U.S.C. 1405c. The amendment also provided that no Federal laws levying tonnage duties, light money, or entrance and clearance fees shall apply to the Virgin Islands.

coastwise laws of the United States applied to the Virgin Islands.

EXECUTIVE ORDER 9170

The 1942 Executive order had the effect of reapplying some of the navigation and vessel inspection laws of the United States to the Islands. The history surrounding the promulgation of the Executive order, though meager, is sufficient to shed light on why this came about and the extent of the restoration.

Following the 1939 amendment of the Organic Act, in 1940 the Legislative Assembly of the Virgin Islands promulgated a local Navigation, Boat Inspection, and Safety Law.22 This law was superseded by a total revision in 1941.23 On the same day that the Legislative Assembly passed the revision, November 21, 1941, it also adopted a resolution 24 petitioning the President of the United States to exercise the authority vested in him under amended section 4 of the Organic Act, 48 U.S.C. 1405c(d), and to make applicable to the Virgin Islands all the navigation laws of the United States except the coastwise laws, the Federal laws levying tonnage duties, light money, or entrance and clearance fees, and any law requiring a certificate of inspection permitting the carrying of passengers on cargo vessels.

This request was apparently born in an atmosphere resulting from the spreading danger of sabotage, subversion, and war. While the resolution contained no recitals, it appears from its transmittal to the Budget Bureau by the Secretary of Commerce (January 20, 1942), with the first draft of the Executive order, that application of certain navigation laws of the United States, particularly those pertaining to entrance and clearance of vessels at ports in the Virgin Islands, was necessary in the interest of national defense. Indeed, the first draft of the Executive order was drawn in the more selective form of identifying by citation the particular statutes to be made applicable and included no reference to section 292. The revised form, submitted by the Treasury

Session 1940, Bill No. 3, passed Legislative Assembly January 20, 1940, approved January 25, 1940.

128 Session 1941, Bill No. 4, passed Legislative Assembly November 21, 1941, approved December 2, 1941.

24 Session 1941, Bill No. 7, Resolution, passed Legislative Assembly November 21, 1941.

Department 25 in May 1942, reverted to the style in which the request was made by the Legislative Assembly, but with no change in the purpose to accede to the request of the Assembly.2

26

Hence the Executive order, as promulgated May 21, 1942, made applicable to the Islands the navigation and vessel inspection laws of the United States except the coastwise laws and certain other laws having maritime economic significance.27

It is therefore clear that the Legislative Assembly, in requesting the President to apply certain of the navigation laws to the Virgin Islands for national defense reasons, had no intention of asking for re-imposition of those laws of an economic nature relating to foreign shipping from which it had just won freedom by congressional action two years earlier. And, it is equally clear that the President, in acceding to the request and specifically excluding the coastwise and certain other laws of an economic nature, did not intend to disturb that freedom.

CONCLUSION

From this review of the background, it is evident that the 1906 act, 46 U.S.C. 292, prohibiting dredging in the United States with foreign-built dredging vessels, was one of the body of coastwise laws of the United States designed to protect American-built and American-documented ships from foreign competition in the domestic maritime trade, better known as the coastwise trade.

In 1939, Congress recognized that the Virgin Islands had a need to attract rather than discourage foreign shipping, in order to compete successfully with foreign ports in the In consequence, Congress freed the Virgin Islands from the application of the coastwise and other navigation

area.

After the first draft was submitted by the Secretary of Commerce, it appears that the functions of the Commerce Department with respect to navigation and inspection laws were transferred in part to the Bureau of Customs, Treasury Department, and in part to the Coast Guard.

28 Letter of Assistant Secretary of the Treasury, Herbert E. Gaston, to Acting Governor, Robert M. Lovett, of the Virgin Islands, May 11, 1942.

27 E.O. No. 9170, 7 F.R. 3842, also note to 48 U.S.C. 1405c, and full text in Appendix A of this memorandum. The order also excluded the laws establishing regulations for preventing collisions in harbors, rivers, and inland waters, presumably to avoid an unnecessary conflict with the 1941 local code. supra, which covered the subject.

laws of the United States by amending section 4 of the Organic Act of 1936 for that purpose. The power to enact navigation laws of local application was conferred on the Legislative Assembly of the Virgin Islands, but power was reserved in the President to apply such of the Federal navigation laws at he might find necessary in the public interest.

In 1942, responding to the request of the Legislative Assembly, the President by Executive Order 9170 applied to the Virgin Islands some but not all of the navigation and vessel inspection laws of the United States, in the interest of national defense. Among the specific exceptions were the coast wise laws of the United States. Hence the foreign dredge act of May 28, 1906, 46 U.S.C. 292, was not applied by Executive Order 9170, and does not now apply, to the Virgin Islands.

Respectfully submitted.

ROBERT F. KENNEDY.

APPENDIX A

EXECUTIVE ORDER 9170

MAKING CERTAIN NAVIGATION LAWS OF THE UNITED STATES APPLICABLE TO THE VIRGIN ISLANDS

WHEREAS Section 4 of the act of Congress of June 22, 1936, entitled "An Act to provide a civil government for the Virgin Islands of the United States" (49 Stat. 1807, 1808), as amended by the act of August 7, 1939, 53 Stat. 1242, provides in part as follows:

"(c) No Federal laws levying tonnage duties, light money, or entrance and clearance fees shall apply to the Virgin Islands.

"(d) The Legislative Assembly of the Virgin Islands shall have power to enact navigation, boat inspection, and safety laws of local application; but the President shall have power to make applicable to the Virgin Islands such of the navigation, vessel inspection, and coastwise laws of the United States as he may find and declare to be necessary in the public interest, and, to the extent that the laws so made applicable conflict with any laws of local application enacted by the Legislative Assembly, such laws enacted by the Legislative Assembly shall have no force and effect."

AND WHEREAS I find that it is necessary in the public interest that certain navigation and vessel inspection laws of the United States be made applicable to the Virgin Islands, as hereafter stated:

NOW THEREFORE, by virtue of the authority vested in me by the statutory provisions above set forth, it is ordered that all of the navigation and vessel inspection laws of the United States be, and they are thereby, made applicable to the Virgin Islands of the United States, with the following excep

tions:

(1) The coastwise laws of the United States.

(2) The act of Congress approved June 7, 1897, 30 Stat.

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