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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 å 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.
That means to me, where Congress has set up qualifications and certifications of men to conduct hearings that this specific section in the Administrative Procedure Act should not supersede it. If the specific reorganization plan had not taken us out of the hands of the marine boards we would have no questions today because these boards were set up by administration. It seems to me the argument is just as strong when turned over to an individual officer because he needs the same qualifications that the old three-man boards required. I do not think, in enacting S. 1077, you would in any way weaken the Administrative Procedure Act because you would already have the fact that Congress has already set up qualifications for these officers in the old boards, the Coast Guard officers who come closer to meeting these congressional standards than any others. I do not think you would be setting a precedent for another agency of Government because here a standard is provided.
There lies the real difficulty—a man in possession of a license or certificate must be presumed to be qualified for a job and only by suspending or revoking these papers can the careless or incompetent man be kept off the sea. As a result of these 9 months during which no documents could be suspended or revoked, there are literally hundreds of men at sea today who should not be there. You can well understand why we ask for haste in passage of S. 1077.
The Navigation Laws (46 U. S. C. 239) require the investigation of casualties “to determine whether any incompetency, misconduct, unskillfullness, or willful violation of law” caused or contributed to the cause of such casualty. If it is found that a licensed officer or holder of a seaman's certificate "is incompetent or has been guilty of misbehavior, negligence, or unskillfulness, or has endangered life, or has willfully violated” the law or the regulations issued thereunder, his license or certificate shall be suspended or revoked.
S. 1077 would renew the authority of the Coast Guard to designate officers to hear these cases. The Coast Guard conducted such hearings from 1942 until June 11, 1947, the effective date of the Administrative Procedure Act. In that period the Coast Guard handled them fairly and expeditiously.
The law guarantees a fair trial to every officer or seaman. Every man brought up for a hearing has the right to his own counsel; he has the right to cross-examine witnesses and to call witnesses on his own behalf. The proceedings are orderly and the man has every opportunity to clear himself. If not satisfied with the ruling of the hearing officer the man can appeal and cases on appeal are given a very careful review.
These hearings have three distinct purposes:
Coast Guard hearing oflicers have proven very capable of carrying out all three functions because they have had the training and experience necessary to pass judgment on the involved matters before them. They are able to determine whether a man's conduct and reactions were reasonable under the circumstances. A man who has had no experience as a navigator or as an engineer on board ship could not make such determinations. Instead, the untrained hearing officer would be forced to rely on expert testimony which, in a controversial case, would be produced by both sides. It seems far better to have these matters handled by a hearing officer, who, by training and experience, is familiar with the subject matter,
I would also like to point out that the hearing of these cases by a civilian examiner would separate the revocation or suspension investigation from the investigation of the possible failure of material and equipment. It has always been considered basic that one investigation and hearing should cover the entire case, for only in this way can it be determined whether the casualty was caused by a failure of personnel or a failure of equipment. Also, it is only in this way that sound recommendations can be made by the hearing officers in an effort to set future standards and to prevent recurrences of these casualties.
Enactment of S. 1077 would in no way prejudice the effectiveness of the Administrative Procedure Act. That Act was not intended to supersede the conduct of hearings by other officers where Congress had specifically so provided. At the time of the enactment of the Administrative Procedure Act such a separate provision existed—the marine boards provided by law for the conduct of these hearings were clearly outside the coverage of the act. The fact that the Reorganization Plan subsequently transferred these hearings does not detract from the wisdom of Congress in providing that such technical matters should be heard by men with specialized training. S. 1077 is in keeping with the principles of the Administrative Procedure Act and would set no precedent for cases where Congress had never specified the qualifications of the hearing officers. We ask you to report favorably on S. 1077 and to urge its speedy enactment.
We just ask, as I said in the beginning, that you consider this favorably and that you consider it as soon as possible. There are individual cases which we would like to bring to your attention.
Mr. GRAHAM. Do you care to submit a statement to that effect ?
Mr. MALONEY. Captain Cumings is here with me and is representing the American Merchant Marine Institute. He has a couple of cases he would like to give you.
Mr. GRAHAM. At this point are there any questions?
STATEMENT OF CAPT. SCHUYLER CUMINGS, REPRESENTING THE
AMERICAN MERCHANT MARINE INSTITUTE
Captain CUMINGS. I am Capt. Schuyler F. Cumings, presently employed as senior marine superintendent with the United States Lines.
I am here representing the American Merchant Marine Institute, an association of steamship companies operating out of the Atlantić and Gulf coasts of the United States.
I started going to sea in 1907 and was graduated from the New York State Nautical School in 1909. Since then I have sailed continuously at sea in various capacities until 1936. I have commanded ships ranging from 3,000 tons up to about 50,000 tons with various lines of the United States. This includes such large ships as the "Leviathan," "Manhattan," and the "Washington."
I served in the United States Navy in World War I and in World War II. I was assigned by the Navy in World War II as commodore of convoys in the Atlantic.
In 1936 I came ashore as marine superintendent of the United States Lines and have been ashore in that and my present capacity with the exception of the war period.
This proposed law, H. R. 2966, seeks to return to the United States Coast Guard the duty of holding investigations and trials of merchant marine licensed officers and certificated seamen who may be charged with misconduct or malpractice in the performance of their various duties for which they are certificated. These certificates are issued by the Coast Guard as a qualification of the holder's ability to perform the duties of his position on board ship.
These are not criminal trials, for it is the duty of the Coast Guard Merchant Marine Inspection Unit to notify the Federal attorney of any evidence that shows that a crime has been committed.
Nautical science is composed of the arts of navigation, piloting, ineteorology, and seamanship and has a separate branch of marine engineering. It is as highly a specialized science as the practice or law or medicine and surgery.
The bar association conducts investigations of malpractices of the science of law, but they do not call in a surgeon or a mining engineer to pass judgment on the unfortunate barrister.
It takes a surgeon of experience to judge the skill and ability of another surgeon, and a mining engineer or shipmaster of the merchant marine are not asked to pass judgment on the surgeon or doctor.
This law would replace in the hands of the United States Coast Guard the duties of trial in matters which investigation has shown that there is a question of malpractice or misconduct on the part of seamen who possess certain licenses or certificates qualifying them to perform certain duties on board ship. The proper performance of such duties and the seamanlike manner in which they are carried out are the product of many years of experience at sea and intimately tied in with safety of life and property at sea.
Since early in the history of governmental regulation of ships for the purpose of safety, a bureau or governmental office was organized called the Steamboat Inspection Service. Its duties called for the inspection of ships and their equipment to see that it was properly fitted, maintained, and manned for the peculiar work it was to perform. Trained men of the sea were selected to make the rules and regulations and to see that they were observed. They issued licenses, certifying the competency of the license holders to perform certain duties of his position on board ships.
It was realized that the seaman of years of experience was the best man to formulate the rules and regulations and to see that they were enforced. When laxity was found on the part of license holders, he was charged and placed on trial before a board of inspectors who had the power to revoke or suspend his license. These inspectors were men who gained special knowledge and experience at sea. They were seamen. They, by such special knowledge, broadened by long experiences at sea, learned in the practical application of such knowledge to conditions only found at sea, were admirably adapted for the purpose of judging the actions of seamen.
Later the Steamboat Inspection Service was reorganized and it became the Bureau of Marine Inspection. This bureau was given broader duties and one of which was to issue certificates to able bodied
seamen, ordinary seamen, and to seamen employed in other capacities on board ship. They also issued certificates to lifeboatmen.
Again this bureau is manned by inspectors who are especially qualified for their duties by long experience at sea. They held trials and judged licensed officers and certificated seamen, when necessary, as to their conduct and ability. They did an excellent job.
This bureau was transferred to the United States Coast Guard during the war by presidential order and has remained there since. The officers were transferred with it and remain with it to this day.
The Coast Guard has made a great reputation for courage and ability in saving life at sea. In order to make such a reputation, the officers and men must be seamen well organized, well led, and well trained in their duties. They too must recognize and practice the same general rules of conduct and procedure that the merchant marine seamen do in handling ships and performing the work of seamen.
There are some differences as to the type of service which the Coast Guard cutter and the merchant vessel perform, but the seamanship and rules for conduct are similar. I believe that the present Coast Guard officers are far more competent to examine into and pass judgment on such matters as conduct and malpractice than are men of another profession.
Legal procedure has its place in civil and criminal cases before law courts, but as we are well aware, direct questioning by men thoroughly acquainted with the technical and mechanical aspects of the matter being inquired into, along with the practical application and usage of such aspects, are generally more disclosing of facts than are the charges and objections to the relevancy of questions put to a witness, so often designed to prevent an answer or to confuse the issue and so prevent the truth from appearing.
Mr. GRAHAM. Captain, let me interrupt you a moment, please. We are about to approach the discussion of offenses and Mr. Maloney indicated that you wished to discuss certain specific instances which you are ready to give us. Do you wish to do that now or do you prefer to finish your statement first?
Captain CUMINGS. I was going to come to that.
Captain CUMINGS. If a seaman should become a habitual drunkard and has a record of such, from various ships, his certificate should be revoked. It should not be necessary to wait until by some action of his, due to intoxication, danger results to life and property. The same may be said of the drug addict, the sex fiend, and those suffering with a mental disease, many of whom are encouraged to go to sea in an effort to get rid of them even if only for a short period of time.
Danger for such people is very real on board a ship at sea, a thousand miles from shore.
Gentlemen, I have in mind a case on board a ship of the United States Lines where a seaman built a fire in the middle of his quarters. He built this fire with magazines and newspapers and he said he did it because other members occupying that particular room were in the habit of putting papers on his bunk. There must be something mentally wrong with a man of that kind. He could have thrown the papers out of the port hole if he wanted to be revenged on these men. But no, he built a fire.