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Mr. HOBBS. You do not look for us to justify that discrimination? Mr. VOLPIAN. We do not even consider those things. I will say this: That there are certain people nowadays in the merchant marine who have been guilty of some serious offenses. There are such things as smuggling. You gentlemen all understand there are a lot of blackmarket operations going on on the other side. Some of the men of the merchant marine have been caught engaging in black-market activities, and, in some cases, narcotics have been sold. The union, whenever we hear of such a case, we immediately take action against that man to have him completely expelled from the union. We do not want that kind of people. We want workingmen and we want them to get good wages. That is our interest in the thing.

I want to say that the men of the merchant marine despise the Coast Guard so badly that it is not good for the health of the country. I do not think it has been brought up in the testimony previously, but the Coast Guard-I mean the merchant marine was under the jurisdiction of the Department of Commerce, and when the war was over the Department of Commerce should have gotten the merchant marine back there was a gentleman by the name of Henry Wallace who was Secretary of Commerce at that time, and he relinquished it to these people. I do not know anything about Henry Wallace. Any kind of government organization that can generate as much hatred toward themselves as the Coast Guard has--the best thing that ever happened to the Communist Party, from our standpoint, is what happened. Mr. KEATING. What do you do to Communists in your union? Mr. VOLPIAN. We do not allow them. We do not have one. We do not get close to them.

Mr. KEATING. In your judgment, in your union there are no Communists?

Mr. VOLPIAN. That is correct; there are no Communists in our union.
Mr. LEWIS. Any further questions?

Thank you very much.

The committee is adjourned until next Monday at 10 a. m.

(Whereupon, at 12:30 p. m., the subcommittee adjourned, to reconvene at 10 a. m., Monday, March 15, 1948.)

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CONDUCT OF DISCIPLINARY HEARINGS OF COAST

GUARD COMMISSIONED OFFICERS

MONDAY, MARCH 15, 1948

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 3, COMMITTEE ON THE JUDICIARY, Washington, D. C.

The subcommittee met at 1 o'clock p. m. in room 346, Old House Office Building, Hon. Louis E. Graham (chairman of the subcommittee) presiding.

Present: Hon. Louis E. Graham, Hon. Albert L. Reeves, Jr., Hon. Kenneth B. Keating, Hon. Sam Hobbs, Hon. Martin Gorski. Mr. GRAHAM. The subcommittee will be in order.

We have five witnesses to testify today: Capt. Schuyler Cumings, Mr. Walter E. Maloney, Mr. Hoyt Haddock, Capt. Donald Preble, Mr. Harry Hayden. It has been our custom, gentlemen, to take those witnesses from a distance first. Is there anyone from a distance who wishes to be heard first?

All right, if not, we will hear from Mr. Walter E. Maloney. STATEMENT OF WALTER E. MALONEY, ATTORNEY, NATIONAL FEDERATION OF AMERICAN SHIPPING, INC., AND AMERICAN MERCHANT MARINE INSTITUTE, INC.

Mr. MALONEY. I am engaged in the practice of law as a member of the firm of Burns, Currie, Walker & Rich, 40 Wall Street, New York 5, N. Y. I represent the National Federation of American Shipping, Inc., of Washington, D. C., and the American Merchant Marine Institute, Inc., of New York City, both of which are trade associations. The members of these associations, on whose behalf I appear, are the owners and operators of the great majority of American flag oceangoing vessels. I appear in support of S. 1077 and urge your committee to recommend its passage.

I should say, on behalf of the shipping industry, we support S. 1077 and we ask your committee not only to recommend its passage but we ask you to do so as soon as possible in order to correct the situation which has become intolerable.

For 9 months there has been no governmental agency to suspend or revoke the licenses or certifications of sea-going personnel. Our interest lies primarily in the fact that there is no other way by which sea-going personnel can be controlled insofar as ability and competence is concerned.

All licensed officers' or seamen's certificates are their badges of competence and ability. In other words, they certify to the fact that the man has met certain requirements in order to get that document and when he once gets the document, under the law, he must be accepted.

Mr. GRAHAM. We are familiar with that.

Mr. MALONEY. It must be accepted as prima facie evidence of his ability. It means there have been hundreds of offenses over the past 9 months. While ultimately, the proper authority will be able to catch up with these people and take action, for the present time they are on the sea. They are there with their negligence, their lack of ability and they are there to repeat the casualties which have occurred and they are a continuing menace to life and property at sea.

It is for that reason that we ask haste in the passage of this bill. In case of the master a license is issued only after he has satisfied the Coast Guard "that his capacity, experience, habits or life, and character are such as warrant the belief that he can safely be intrusted with the duties and responsibilities of the situation for which he makes application" (46 U. S. C. 226). In the case of an able seaman proof must be made showing the vessels on which he has had service and that he is skilled in the work usually performed by able seamen (46 U. S. C. 672). The law provides further that the seaman's certificate "shall be retained by him and be accepted as prima facie evidence of his rating as an able seaman."

My statement sets forth conditions under which licenses and certificates are granted and also the conditions under which they can be revoked or suspended. I will not go into that here. I would like to go into one or two points brought up last Wednesday in Captain Ash's statement, he compared the number of misconduct cases at sea to those on shore and said they were not out of line. We do not say they are. But our primary concern is that these men be taken out of work at sea with a document which says they are able when we think and a hearing would prove otherwise.

Secondly, a misunderstanding may have been created when Captain Ash says these men can get a job elsewhere even though there has been no hearing, and I think he referred to the bonding of these men. In the first place, bonds do not cover a man's ability. They cover his honesty and integrity. They are actually integrity bonds to insure the money intrusted to him. They have nothing to do with his ability. Many masters are not bonded. It is usual to bond the purser. The mates are not bonded and the sea-going personnel are not bonded. So, while these men have in their possession these certificates, they can go from one ship to another. Admittedly, the company that finds a man at fault will have a hearing, but the sea-going personnel go from company to company. This man is free to go elsewhere and that other company has no way of determining his fitness or competence so long as he has the necessary documents.

In my opinion, the law guarantees a fair trial to every officer and seamen brought up on hearing. I would just call your attention first to the statute which gives a man the right to his own counsel. That gives him the right to cross-examine witnesses and to call witnesses on his own behalf. That is carried out in the regulations which appear in the Federal Register which is published by the Coast Guard,

and I believe, in view of the testimony of the witnesses on the previous days of this hearing, it would be pertinent to read a short paragraph from these regulations. They appear in § 137.09–5

The person charged shall have the right to have counsel present at the hearing and shall be permitted to call, examine and cross-examine witnesses and to introduce relevant documentary evidence into the record. Should the person charged desire counsel and have no means of obtaining one, the examiner will secure an officer, if one is available, to act in his defense.

On the question whether these men received a fair hearing, there was criticism. We hear criticism from the industry as well. I have not put it into my statement. Statements were made last Wednesday but I think you will hear criticism of any person sitting in this capacity. You cannot satisfy both parties in a controverted issue. You will have dissatisfaction.

I think it would be quite apparent from Mr. Harolds' testimony last Wednesday, and he was equally critical of the Bureau of Marine Inspection and Navigation. It was a civilian agency. It was not directed solely at the Coast Guard. It certainly seems to me that everyone is prejudiced against seamen. They have more protection under the law than any other American working man and while Mr. Harolds seemed to admit that some Government agency was necessary, I would say he joined with the other Union witnesses, in feeling there should be no control outside the Union. We dispute that.

I think I can skip over considerable matter that appears in my statement as long as it is included in the record.

I would like to call your attention, however, to the fact that hearings conducted in marine casualties or cases of incompetence that come to the attention of the officer have three separate aspects.

In the first place, they are to determine how the casualty came about. In the second place, they are to find out if any individual is at fault. And in the third place, they are held for the purpose of having the hearing officer make recommendations to prevent similar accidents in the future.

In these investigations the hearing officer should never be limited. to one phase of the casualty. You cannot separate failure of personnel from failure of equipment or material. Both could contribute and we feel that both aspects should always be together and never should the disciplinary phase be put into the hands of a civilian examiner and the equipment failure phase in the hands of a technical master. We think they should always be together so the whole picture can be presented in a hearing conducted by one officer and he should be a specially trained man.

Now, turning to the last point, I wish to mention that I have heard some comment on S. 1077 on the ground that it would be the first amendment to the Administrative Procedure Act and that it would set a dangerous precedent. Looking back at the Administrative Procedure Act, sir, it does not seem to me that that act was ever intended to supersede the hearings in Government agencies where Congress has specifically provided the qualifications of its hearing officers.

The Administrative Procedure Act provided that "nothing in this act shall be deemed to supersede the conduct of specified classes of proceedings in whole or in part by or before boards or other officers specially appointed by or designated pursuant to statute.

74403-48-ser. 17-10

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