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or non passage of S. 1077 will in no respect alter the disiplinary requirements of R. S. 4450, as amended-change the rule with respect to admission of log book entries, as evidence-amend the appeal procedure in any manner-nor eliminate double jeopardy if there were any.
The only thing that a decision on this legislation will ever solve, is to which of two possible mediums or agents, the Commandant may delegate the responsibility of hearing those disciplinary cases involving merchant seamen which he, as a practical matter, is unable to hear in person. On the choice between these two agents, civil examiners or commissioned officers, there may be an honest difference of opinion but the issue should be confined to this choice.
Mr. KEATING. Let me ask you in clarification of that—under the laws which exist now, if the Commandant now had the time, he could hear all these cases?
Captain RICHMOND. He could hear every single case and be in complete conformity with the Administrative Procedure Act. He is the agency described in that act, sir.
Mr. KEATING. And if he saw fit to, even if we were to take no action here, he could still refer a particular case to a member of the Coast Guard rather than to a civilian agency?
Captain RICHMOND. No, sir. You mean he could delegate his authority? No. That is the very reason we require the bill. He cannot delegate that under a ruling by the Department of Justice, other than as required by the Administrative Procedure Act, which specifies members of the board or examiners appointed under the terms of the act.
Mr. KEATING. I see.
Captain RICHMOND. Let me repeat, the Coast Guard gets not one iota of increased power or responsibility out of this bill. If the bill should be rejected by this committee or Congress, the civil examiners who would be employed would be employees of the Coast Guard, just as the examiners of CAB or Interstate Commerce Commission, or the Federal Power Commission are employees of their respective agencies.
As civil examiners sitting on these cases, which would be still investigated and presented by Coast Guard officers, they would, in those cases where no witnesses were available be forced to render their decisions on the basis of log entries, just as the commissioned officer did in the case presented to you the other day by Mr. Harolds. The case of the seaman who stood mute in the face of a series of allegations culminating in one that he deserted his ship in a foreign port. And I think that we can safely assume that even with civil examiners charges will be proved on the basis of log entries alone, because you will recall it was explained that log entries when properly made are acceptable as evidence. To prove that the Coast Guard is not unfamiliar with this rule of evidence, I would, with the permission of the chairman, like to place in the record a decision on appeal in which the action of the hearing officer was reversed by the Commandant because there was no showing that certain log entries upon which two specifications were based had been made in compliance with law.
If that is permissible, I would like to put this decision in the record. Mr. GRAHAM. Yes. It will be made part of the record.
Captain RICHMOND. The question of double jeopardy has been raised on several occasions. It is not believed there is any more double jeopardy involved in these “In Rem” proceedings against the licenses
or certificates of merchant seamen than there is in the case of the traffic violator who not only may be fined in a traffic court, but may have his license suspended or revoked by the director of traffic. There is another fact which makes the double jeopardy allegation even more unreasonable. On no subject are our courts more alert than on the matter of double jeopardy. Yet in spite of this and in spite of the fact that in many cases the seamen have been represented by able and competent counsel, not once has an appeal been taken to the courts on the basis of double jeopardy. But even if there were double jeopardy, civil examiners would in no way cure the matter so that this bill passed or rejected does not effect that point.
Mr. KEATING. I may be entirely wrong. I understood they did not use double jeopardy in the technical sense. I did not interpret the testimony as being an argument about what we lawyers call double jeopardy, but that they were using the phrase in a non-technical sense to show that merchant seamen had a rather tough time with these five or six ways in which they could be punished.
Captain RICHMOND. Yes. I mainly referred to what was said by Mr. Harolds that they were opposed to this bill because of the double jeopardy. I may be wrong and if the testimony does not bear me out I would like to correct that. As far as possible authorities under which individual seamen might be punished, I agree with the list Mr. Harolds gave and I could add two more. I think he overlooked punishment in a foreign port by a foreign sovereign, and in wartime WSA which like the owner could impose a form of punishment by employment or nonemployment of a seaman.
On the question of appeals much has been said, but here again it is difficult to see where s. 1077 has a direct bearing. Of course, it could be assumed that irrespective of the decision rendered by civil examiners their decision would be accepted and no appeal would be filed, but that is far fetched. On the contrary, it is anticipated that the number of appeals filed will remain about the same irrespective of who hears the cases. That number is approximately 10 percent of the decisions rendered. And although the opinion has been stated that it is useless to appeal a case to the Commandant because the decision of the hearing officer will always be upheld, I suspect that the statistics in this connection will not vary a great deal. In the past, of the cases appealed, the action of the Commandant modified 37 percent and 15 percent of the cases appealed were completely reversed in favor of the appellant.
Mr. KEATING. Of that number, how many were officers and how many were seamen?
Captain RICHMOND. Sir, I have a letter here I would like to read.
Mr. GRAHAM. May I suggest if it takes too long you can submit the letter.
Captain RICHMOND. I think it is a very vital point and I would like very much to read one paragraph because it was a letter to Mr. Curran of the National Maritime Union on the point in question.
UNITED STATES SENATE,
March 5, 1948.
House Office Building, Washington, D. C. MY DEAR CONGRESSMAN: Mr. Bruce Macnamee has asked me to express to you direct my views with respect to the question of whether the language of S. 1077 as it passed the Senate will result in amending the Administrative Procedure Act, or interfering with the principle of that act, or otherwise derogating that act.
This bill, as it passed the Senate, contains language which I recommended, as an amendment to the language of the bill as introduced. Furthermore, the purpose of the amendment was to make sure that the Administrative Procedure Act would not be weakened in any way.
I am quite positive that the language of the proviso proposed by S. 1077 as an amendment to subsection (g) of section 4450 of the Revised Statutes is not in conflict in any way with the Administrative Procedure Act or with the principle of that act. On the contrary, the purpose of this language is to solve the practical problem confronting the Coast Guard and the Treasury Department, but to solve it within the framework of the Administrative Procedure Act rather than by amendment thereof or in conflict therewith.
Permit me to call your attention to the fact that (apparently as a result of a clerical or typographical error) the first few words of the bill, after the enacting clause, are not accurate. Instead of reading “that an act to amend section 4450" etc., the bill should read “that subsection (g) of section 4450" etc. I have taken the liberty of calling this matter to the attention of the chairman of the Senate Committee on the Judiciary; and if your committee should see fit to correct this minor error, I feel sure the Senate would concur in the amendment.
The purpose of the bill s. 1077 is, in my opinion, wholly praiseworthy, and I should like to express the hope that your committee may see fit to report the bill favorably at an early date. Kindest personal regards. Sincerely,
UNITED STATES Coast GUARD,
Washington 25, D. C., March 15, 1948. Miss VELMA SMEDLEY, Assistant Chief Clerk,
House Judiciary Committee. The following excerpt from a letter from the Commandant, United States Coast Guard, to Mr. Joseph Curran, president, National Maritime Union, dated September 5, 1946, I believe will answer the question asked by Congressman Keating at the hearing this morning :
“As an example, may I call your attention to the following figures published in the proceedings of the Merchant Marine Council, August 1946: Coast Guard Merchant Marine Hearing Units and Details investigated a total of 6,029 cases during the months of March, April, and May 1946. From this number hearings resulted involving 239 officers, and 1,115 unlicensed men. In the case of officers, 6 licenses were ordered revoked, 96 were suspended, 127 were suspended on probation, 18 were voluntarily surrendered, 11 were closed with admonitions, and 27 cases were dismissed. Of the unlicensed personnel, 44 were revoked, 448 were suspended, 577 were suspended on probation, 172 were voluntarily surrendered, 23 closed with admonition and 63 dismissed after hearing."
A. C. RICHMOND,
Chief, Planning and Control Staff. Captain RICHMOND. As I said, of the number of decisions 37 percent have been modified and 15 percent completely reversed.
Mr. KEATING. Was that 15 percent a part of the 37 percent?
Captain RICHMOND. Oh, yes. It is not a total of 52 percent. There was a distinction of two kinds.
Last week the case of the S. S. Henry Hadley was mentioned and now I would like to submit for the record the appellant's brief and the Commandant's action on appeal. I wish that you gentlemen individually had the opportunity of reading both documents. You would recognize immediately that it would be a physical impossibility for the Commandant of the Coast Guard to personally prepare each action on appeal. In fact, each case appealed to the Commandant is sub
jected to a careful legal review by the chief counsel, United States Coast Guard, who actually prepares the decision for the Commandant, after consultation with administrative officers on the clemency aspects involved. The chief counsel is a civilian under the immediate supervision and control of the General Counsel of the Treasury Department, who also is a civilian. Thus you see that this appeal procedure is not affected in any way by the bill before you.
Before once again stating the position of the Coast Guard with respect to this bill, I should like to restate for the record exactly what steps the Coast Guard has taken to obtain funds to employ civilian examiners should the use of officers be denied it. When the Bureau of Marine Inspection and Navigation was transferred to the Coast Guard in July 1946, approximately a month after the passage of the Administrative Procedures Act, it appeared that with the abolishment of the statutory boards and offices a question of authority had been raised. Accordingly, a decision was requested from the office of the Attorney General and when the service was advised that the terms of the Reorganization Act subjected us to the necessity of using civilian examiners an estimate for their hire was submitted to the Bureau of the Budget. After a number of consultations between various officials, this estimate was rejected and language exempting the Coast Guard from the necessity of employing civilian examiners was included in the request for appropriations for the fiscal year 1948. We appeared before the Appropriations Committee in February last year but they rejected the exemption, and directed that a bill be introduced to clear the matter. H. R. 2966 and S. 1077 resulted.
Hearings were held before this committee on H. R. 2966 on April 28, 1947. On June 6, 1947, a draft of a bill to extend our authority 9 months from June 11, 1947, was submitted to this committee. On June 9, 1947, this committee reported H. R. 2966 favorably to the full House Judiciary Committee. On June 17, 1947, the full House Judiciary Committee tabled the bill.
At this time we were preparing supplemental estimates for other matters and there was included in these estimates funds to cover the employment of civil examiners.
On July 14, 1947, the Senate Judiciary Committee reported S. 1077 favorably as amended, and on July 17, 1947, it passed the Senate. At the same time, or approximately at the same time, at the close of Congress when things were moving pretty rapidly, we appeared with respect to the supplemental request, and our request for civilian examiners was rejected with the language I quoted you the other day from the report of the House committee, a supplemental report.
In July 1947 we were preparing our estimates. And incidentally I want to make the point that the testimony at both these hearings is a matter of official record and if there is any doubt as to what the witnesses said, they can reassure themselves by the official record of these hearings.
Mr. GRAHAM. It is my understanding that this testimony will be printed so it can be available.
Captain RICHMOND. Yes. The reports of the Appropriations Committee are official documents, sir.
In July 1947 then, we were preparing our estimates for fiscal year 1949, and we included therein estimates for civilian examiners. This request in the 1949 appropriation request is there but our hearings are
not scheduled until approximately May 1, and if appropriated the founds will not become available until July 1.
Finally, with respect to S. 1077, the Coast Guard feels that it is in the best interests of the Government if it is enacted. As has been stated, the Administrative Procedures Act was not intended to apply to the type of hearings held by the Coast Guard and the hearings would have been excluded had it not been for the wording of the Reorganization Plan No. 3 of July 1946, approved nearly a month after the passage of the Administrative Procedures Act. Further, we believe that the type of hearing involved requires a professional knowledge of the sea and its customs, which civil examiners will lack. Legal knowledge in itself is not sufficient.
Further, although there is a necessity of being prepared to administer the requirements of R. S. 4450 in a large number of ports, the work load in the majority of these will rarely justify the full-time engagement of civil examiners, and even where they are assigned they cannot be provided to accommodate peak loads. Officers, as distinguished from civil examiners, may be utilized in slack periods to perform a number of duties totally unrelated in any respect to the administration of the Administrative Procedures Act. In this fact lies the merit of S. 1077, since it provides a machinery for the fair, effective, and more economical administration of R. S. 4450, as evidenced by the records of hundreds of cases all of which are open to impartial inspection of this committee, should you care to view them, sir.
I have nothing further to add unless there are some questions.
Mr. GRAHAM. May I suggest to those who testified that this will probably be the last hearing on this matter. In that event, if there are any statements to be submitted, they should be placed in the hands of the reporter or the clerk of the committee so they can be made part of the permanent data.
Do any witnesses desire to be heard ?
Mr. MALONEY. Mr. Haddock has touched on the point of the degrees of disciplinary matters. I don't question that at all. I would accept that. We have fewer ships sailing and I think, as he says, many minor cases which the Coast Guard would pick up are just not handled today.
Furthermore, you have the situation where masters have given up hope of any action and these cases are not reported. The place to find the infractions is on the log books of the ships.
I had a most interesting letter to read to you but I will skip that.
Mr. MALONEY. No. It has not come to trial and there are individuals named in it.
I cannot let pass without comment on this America difficulty which was brought up, I believe, by Mr. Hayden, and commented on by Mr. Haddock. There is no question about it. The ship did sail and on schedule, so far as I know. Also, to the best of my knowledge, she took with her the man who made these statements on her arrival and he was acting as a delegate of the crew.
But that is not all there is to that case and I cannot let it pass. I am not disclosing any confidences. There is a fight going on in the National Maritime Union at this moment to try to weed out the large Communist element that has caused incidents of that sort.
I am sure Mr. Haddock would agree with me. It has been in the press. Joseph Curran, for whom I have great respect, has never