c33:No. 45, Docket 21410

FRANK, Circuit Judge
(dissenting).
O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 42, 63 S.Ct. 488, 87 L.Ed. 596, and Farrell v. United States, 336 U.S. 511, 517, 69 S.Ct. 707, seem to me to leave no doubt that the Supreme Court has held provisions of the Convention, similar to . Clause 1 of Article 2, to be self-executing. The only question, then, is whether Clause 2 of Article 2—i. e., “that national laws or regulations may make exceptions” —is to be interpreted as if it read “existing national laws, regulations or decisional rulings, shall constitute exceptions.” Chief Justice Stone, in his concurring opinion in Waterman S. S. Co. v. Jones, reported in Aguilar v. Standard Oil Co., 318 U.S. 724, 738, 63 S.Ct. 930, 938, 87 L.Ed. 1107, said that he was of “opinion that Article 2, Clause 1 of the treaty authorizing the recovery is self-executing, and that the exceptions permitted by Clause 2 are not operative in the absence of Congressional legislation giving them effect. (See letter of Secretary of State to the President, dated June 12, 1939, quoted in H. R. Rep. No. 1328, 76th Cong., 1st Sess., pp. 5-7.)”
This interpretation seems to me to be in accord with both the literal and reasonable meanings of the words, and is supported by the cited interpretation given by the Secretary of State. The construction given by my colleagues seems to me to be unnecessarily complicated and insufficiently sustained by persuasive reasons to justify a disregard of Chief Justice Stone’s views. My colleagues’ use of Clause 3 of Article 4 as an aid in construing Clause 2 of Article 2 is weak, I think, for two reasons: (a) Clause 3 of Article 4 contemplates an existing “scheme” created by statute, not a mere decisional product; and (b) it makes no reference to “exceptions,’’ as does Clause 2 of Article 2.

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