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In the Legislative History of the Administrative Procedure Act (Senate Document No. 248, 79th Cong., 2d sess.) I find on page 325 the statement of the chairman of the Senate Committee on the Judiciary that section 7 of the APA was intended “to preserve special statutory types of hearing officers who contribute something more than examiners could contribute."
I feel that Coast Guard officers acting as hearing officers contribute something more than civil-service examiners could contribute. Those ('oast Guard officers used for this duty have had special training in the hearing procedures, but more than that, they are skilled in the sea going profession and are able to rule justly not only on matters of fact which the civil service examiner could do as well, but also on matters concerning judgment, competence, unskillfulness, and negligence of merchant marine officers and unlicensed men. Rulings on these are required by Revised Statutes 4450 and the officer with a broad background of seagoing experience is much better qualified to rule on them than is the civil service examiner whose background is mainly legal.
Mr. GRAHAM. Have the members any questions?
Mr. KEATING. Mr. Hand, I understood that you felt that the Coast Guard had done a creditable job in handling these hearings to date. Am I correct in that?
Mr. Hand. Yes, you are correct, Mr. Keating. But I do want to say this. I want it clearly understood that that statement does not proceed from my intimate knowledge of actual hearings conducted. It proceeds from such examination as I have been able to make of this subject and also perhaps a prejudice that I have formed in favor of the Coast Guard from my intimate association with them. I think they do a pretty good job in everything they undertake.
Nr. KEATING. I know of the gentleman's eminent reputation for fairness in these matters, and I know the gentleman would subscribe to the principle that the officers and the seamen should be treated with even-handed justice.
Mr. HAND. Undoubtedly.
Mr. KEATING. Is the gentleman aware of the fact, has it ever been brought to his attention, that among the cases investigated by the Coast Guard, and then prosecuted, the percentage of cases prosecuted in the case of seamen is very, very much greater than the percentage in the case of officers? Has that fact ever been brought to your attention?
Mr. HAND. No. I would have no doubt that that was so. It would seem to me it would necessarily be so, with a greater number of persons and somewhat less standard of discipline in the officer class
Mr. KEATING. I did not make myself clear, if you gained the impression that the number of persons involved entered into it, because I was speaking only of percentages. Unfortunately, I do not have the testimony previously given. Mr. HAND. Relative percentages—I see what you mean.
Mr. KEATING. In other words, if it were a fact that among the officers, of the cases investigated, some 20 percent were prosecuted, and among the enlisted men some 80 percent, might that be a factor possibly altering, to some extent, your present viewpoint?
Mr. HAND. It might be, if the facts involved in the various cases did not warrant that apparent discrimination. It is pretty hard to answer unless you know all the facts.
Mr. KEATING. I do not want to have the gentleman feel that those figures are in any degree accurate. All I remember is that it was brought out in previous testimony that there was a very great discrepancy between the two percentages, which perhaps led some to feel
that there was some favoritism to oflicers not shown to the seamen. I know you would subscribe to the principle that that should not happen.
Mr. Hand. Very definitely.
Mr. KEATING. In speaking of the Coast Guard and saying, in your judgment, without intimate knowledge of the situation, you felt that they did a creditable job, do you have any reason to feel that a civilian agency would not be likely to do a creditable job!
Mr. Hand. I would say this to the gentleman: It seems to me that in matters of this character which are all necessarily having to do with the sea and with maritime activities, a maritime arm of the Government, such as the Coast Guard, has a better knowledge and better means of conducting fair hearings and enforcing these rules than a civilian agency would, I would think.
Mr. KEATING. As to the technical questions of running a ship, and th sort of thing, you are speaking now, aren't you, of those technical questions?
Mr. Hand. Yes; and I suppose a great many of these matters of discipline have some direct or indirect bearing on the operation of a ship.
Mr. KEATING. I mean, it does not take an expert to tell whether a man is drunk.
Mr. Hand. It does not take an expert to do that, nor to administer justice. I do think expert knowledge is helpful in this character of a proceeding.
Mr. KEATING. Of course, to a certain degree that would be true of a hearing commissioner in any specialized field of activity. Do you know of any other cases where hearings are sought to be held by other than the established agency under the Administrative Procedures Act?
Mr. HAND. No, I do not. I am not sufficiently familiar with the subject to be able to say whether there is or not. It may well be, but I do not know about it personally.
Mr. KEATING. The gentleman's statement that the Coast Guard was not seeking this assignment, I take it, is not founded on any more intimate knowledge of the situation than his statement that the Coast Guard was doing a good job?
Mr. Hand. It has been my experience with the Coast Guard that they take what Congress gives them. They do not make any undue pressure for any authority. If they are supposed to do a job and have a job to do, they, naturally, seek the necessary legislation to do it. It has not been my experience, as chairman of the legislative subcommittee, that they exert any pressure to get additional authority. I do not think they are seeking it.
I am not officially speaking for the Coast Guard. I do not think they are seeking it.
Nr. KEATING. Are you familiar with the way they have followed and sponsored the bill now before us and the previous one which was before us?
Mr. HAND. I am. I think that is because of this backlog of work that they are not able to accomplish because of the legislative situation. I think if Congress would say, "You have nothing more to do with this and close your files and forget it," I don't suppose they would mind. But, there is a job to be done. Someone has to do it.
Mr. KEATING. Is the gentleman aware of the fact that since we told them last May, almost a year ago, that we did not believe that they were the ones to do it, that they have taken no further steps to get proper appropriations for the civilian agencies to undertake the work?
Dir. Hand. Well, the gentleman is aware of the situation with regard to appropriations generally. I would say it has been very difficult in the last vear or so for the Coast Guard to get appropriations to carry out their present functions.
Mr. KEATING. Is the gentleman aware of the fact that they have made no further effort since we told them of the decision of the Judiciary Committee?
Mr. Hand. No. I have nothing to do with the appropriations and I do not know what their efforts have been.
Mr. KEATING. That is all.
STATEMENT OF WILLIAM C. ASH-Resumed Mr. GRAHAM. I have one question. Your organization is opposed to Communists. From the statement you made I got the impression that the Coast Guard has not been very active in this respect.
Mr. Ash. Yes; you did, to this degree: That the Coast Guard could have done something about it prior to the issuance of a license. They were in a very fine position to do something at that time.
Mr. GRAIIAM. You feel that they should have moved in the first instance?
Mr. Ash. Yes; definitely so. I might indulge your kindness to add one more point. The statement has been made that the Coast Guard does not seek this thing. I would like to refer to a statement of Congressman Bradley on page 34 of the hearings on H. R. 3194.
Mr. GRAHAM. You are referring to the late Fred Bradley?
Where he brought out on this particular bill that the Coast Guard most definitely was seeking to build up a permanent organization by statute control or statute regulation that would really perpetuate themselves.
Now, in their functions, as Coast Guard, they have done a wonderful job on lifesaving, protecting our coasts, iceberg control, weather observation, and so forth. They should not only be commended for it but they should stick to it.
Prior to the war I think the Coast Guard consisted of 12,000 men. They had one ranking flag officer and a few captains and officers. They have been continually seeking to establish a very large force of flag officers, commissioned officers, in all ranks, and the necessary enlisted personnel that goes with it.
I have heard testimony given that some 43 officers are involved in the establishment of all of the hearing units. If that was the only cost to the taxpayer, that would be a very small consideration. But, for all the units there is a stenographic staff, court stenographers, transcripts, and so forth.
It is entirely understandable that in appeal the Coast Guard will not overrule their own officers, will not let them down. An appeal is prac
tically meaningless. It must be meaningless if in over 3,000 cases only 4 of them got outside of the Coast Guard to the court.
Thank you, gentlemen.
STATEMENT OF LOUIS R. HAROLDS, GENERAL COUNSEL,
MARITIME UNION OF AMERICA
Mr. Harolds. My name is Louis R. Harolds, 291 Broadway, New York City.
Mr. GRAHAM. What is your capacity?
Mr. HAROLDS. I am a member of the firm of William L. Standard, general counsel for the National Maritime Union of America.
My prior experience with the hearings conducted under R. S. 4450 dates back to about 1938 when the hearings were still being conducted by the Bureau of Marine Inspection and Navigation.
I still recall with some amusement that in one of my first cases the inspector who was acting as a hearing officer interrupted the proceedings at one point when I objected to certain evidence, while I was representing a seaman, stating that the ground of my objection was that the evidence constituted hearsay because this particular officer was testifying as to something somebody else had told him not in the presence of the accused, and that was the basis for the charge--during an interval which occurred during the hearing the inspector called me aside and said, “Tell me what is this hearsay rule that you are urging upon me.”
I explained to him what it was. He then said, “Well, I will sustain your objection, not because it is hearsay, but because you have no opportunity to cross-examine the person who made the original statement, which, of course, was sustaining the reason for the rule but not sustaining the rule.
I might add that that same person still sits as a hearing officer in New York City, but at this time he is a member of the Coast Guard.
On behalf of the National Maritime Union, it is respect fully requested that Congress shall take no action which will enable the Coast Guard officers to conduct hearings pursuant to R. S. 4430, as amended.
We are opposed to this particular bill, S. 1077, because our experience has shown us that the Coast Guard in its prior conduct of these proceedings has not administered the act fairly, impartially, or competently, more particularly in the following respects:
1. The Coast Guard officers who handle these cases do not possess legal training necessary to pass on rules of evidence.
2. The Coast Guard has injected itself into labor disputes when its officers are not qualified to hear and determine the merits of such controversies.
In this regard I would like to deviate for a moment. It will be recalled that originally this statute was enacted following the Morro Castle disaster. Its purpose was at that time to investigate the causes for marine casualties and accidents. As a matter of fact, Secretary of Commerce Roper at that time in setting up the various marine investigation boards, himself said: “I hereby promulgate the following rules and regulations for the investigation of marine casualties and accidents or acts of incompetency or misconduct in connection therewith."
The broad language of this particular statute enabled the inspectors who were hearing the case to claim that they had the power to inject themselves into a matter whether it was a labor dispute or whether it involved a disaster, or did not, and on appeal that authority was generally and invariably upheld.
Mr. KEATING. The appeal was to the Coast Guard ?
Mr. HAROLDs. Yes, sir. At that time it was not the Coast Guard; it was to the Secretary of Commerce. But since then it has also been to the Coast Guard.
I have handled several appeals in which I urged that very point without success.
Another grievance which seamen have is that in disputes between licensed and unlicensed men serving on these merchant ships the military background of the Coast Guard officers causes them invariably to side with the licensed merchant marine officers as against the unlicensed seamen. This has been my experience in case after case. When I find it is a question of either taking the word of several unlicensed men against the word of even one licensed man, almost in every single instance, and I have handled at least 100 of these cases, the word of the licensed man has been taken against the word of the unlicensed
It has to be something very persuasive before the hearing officer would disregard the word of the licensed man.
You have to practically come in with documentary evidence and passengers and what not. The word of the unlicensed man himself has never been deemed sufficient. They always tell you they act impartially,
Mr. GRAHAM. What reason could they have for taking the word of the licensed man against the unlicensed man!
Mr. HAROLDs. That is a very good question. To begin with, I did mention the military background of the Coast Guard officers. Before many of these people were Coast Guard officers, they were under the old Bureau of Marine Inspection and Navigation. Before that they had been masters of vessels or chief engineers. The very system which has led to so much criticism of the military court martial is the same system which has been perpetuated in these particular hearings. Their own background is such that they tend to take the word of someone of their own class, their own background, their own experience.
I had one case in which I was representing a Spanish seaman, who was accused of assaulting some other member of the crew. recess during the hearing, the hearing officer called me aside and said, “You know, I know these Latins; I have sailed with them for many years, and they are very excitable."
There he was right in the middle of the hearings expressing his views that this man had instigated the entire incident. These are not isolated cases, but these are things which have happened time after time.
Have I answered your question? If not, I would like to make it clearer.
Mr. GRAHAM. You feel that the Coast Guard, being more or less of a military organization, has built up a spirit that operates against a fair and honest trial of any man who is not a member of that group?
Mr. HAROLDS. No. I say that where it is a question of taking the word of a licensed man against an unlicensed man or group of un