My name is Hoyt S. Haddock. I am executive secretary of the CIO maritime committee.

The CIO maritime committee is composed of 6 unions whose membership totals over 200,000. Our unions represent licensed officers, merchant seamen, radio-operators, longshoremen, and allied maritime workers.

We appear today in opposition to H. R. 2966, a bill amending the Administrative Procedure Act to enable Coast Guard officers to preside in place of civilians at the taking of evidence in proceedings under R. S. 4450, as amended, inquiring into the misconduct of seamen.

HISTORICAL BACKGROUND OF R. S. 4450

R. S. 4450 (46 U. S. C. 239) was enacted in 1871, and amended in 1896. At that time it only dealt with the power to suspend or revoke licenses of licensed officers, for acts of incompetence or misconduct. More recently, on May 27, 1936, this section was amended and completely revamped. That action was taken by Congress following the Morro Castle and Mohawk diseasters, to remedy a condition which, it was felt, was responsible for those disasters. As amended, the section also became applicable to unlicensed merchant seamen.

On November 10, 1936, Secretary of Commerce Roper stated in setting up the various marine investigating boards:

Pursuant to the authority conferred upon me by the act of May 27, 1936 (Public, No. 622, 74th Cong.), amending section 4450 R. S., entitled, "An act to provide for a change in the designation of the Bureau of Navigation and Steamboat Inspection, to create a Marine Casualty Board and increase efficiency in administration of the steamboat inspection laws, and for other purposes," 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 committed by licensed officers and holders of certificates of service or efficiency, as provided under section 4 of the act of May 27, 1936. It will thus be noted that the boards were set up to investigate acts of incompetency or misconduct in connection with investigations of marine casualties and accidents solely. Nevertheless the board was soon utilized to suspend and revoke the certificates of unlicensed crew members, based upon incidents which were in no way related to marine casualties and accidents.

The reason for this was, that the board, in the main, was composed of retired captains, chief mates, chief engineers and first engineers; and they seized upon this occasion to employ R. S. 4450 as a means for upholding the steamship companies, and the officers of vessels, in their disputes with unlicensed crew members, in the miscellaneous and varied situations which arose.

Dr. Paul Maxwell Zeis, in a book entitled "American Shipping Policy," published by the Princeton University Press in 1938, said of the Bureau of Marine Inspection and Navigation:

A portion of the blame for the unsafe conditions of American ships was directed at the Department of Commerce, which through its Bureau of Navigation, was supposed to see that vessels and crews complied with the navigation laws. The activities of the Bureau fell into such disrepute that no commercial underwriter could accept its findings as a basis for insurance.

Mr. KEATING. May I inquire who Dr. Zeis is?

Mr. HADDOCK. I know very little about his background, except he wrote this book. He is presently employed in the Department of Commerce as a shipping expert.

Not only did they seem to favor ship operators in the inspection of hulls but they also began to favor them by using R. S. 4450 as a weapon to be applied against merchant seamen when labor disputes arose.

Thus, when seamen would walk off vessels on strike, exercising their rights under the Wagner Act, they frequently found themselves faced with misconduct proceedings under R. S. 4450, under which their certificates might be revoked or suspended; that is, the exercise of the right to strike became fraught with the possibility that it might, and frequently did, mean depriving seamen of their right to earn a livelihood in the future, regardless of the merits of the dispute.

Mr. KEATING. But that did not happen many times?

Mr. HADDOCK. Yes; many times.

Mr. KEATING. Did it happen prior to the war?

Mr. HADDOCK. Yes; it did happen prior to the war. I would like to state one of the primary reasons for the enactment of the Administrative Procedure Act was the bias which existed with regard to conducting these hearings against merchant seamen.

The Attorney General's Committee on Administrative Procedure, in its pamphlet Bureau of Marine Inspection and Navigation, 91940, had the following to state, at pages 10 and 11:

The Bureau has given instructions to assistant inspectors that they are to act as counsel for an accused person whenever requested so to do, but in no case has an accused person ever been known to request an assistant inspector to serve as his counsel. The reason for this, it is said, is that seamen consistently regard inspectors as prejudiced against them. That most inspectors are former captains or engineers of vessels is said to give them a point of view at variance with that of seamen and especially antagonistic to the interests of labor unions.

The Attorney General's Committee on Administrative Procedure also stated as follows:

The A boards, the chairmen of which are lawyers, adequately develop records, but the B and C boards, who are without legal talent, sometimes act in rather markedly unconventional ways in conducting proceedings. In one trial in which one of the defendants was not present the board merely "noted" his counsel's objection to proceeding in his absence and went on. Boards are sometimes apparently at a loss to know what ruling to make on motions and objections. For example, when a witness began to explain the workings of his mind to state his beliefs, counsel for the defense objected and a long colloquy between counsel and the board members ensued, but no ruling was made and the witness proceeded with his testimony, not knowing whether he could expound his opinions or not. One wonders whether those primarily trained to be inspectors of hulls and boilers are necessarily well qualified to adjudicate cases of this kind. Cases of collisions, grounding, foundering, and stranding call for understanding of navigation rather than for minute knowledge of ship construction. A single able magistrate having some understanding of maritime experience and some familiarity with legal forms could no doubt perform the C board's task with greater expedition.

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The process of proof: Both investigation proceedings and trial proceedings follow the same judicial pattern. All witnesses are under oath and subject to cross-examination. It is said that the rules of evidence are substantially followed, but it is obvious that the members of the B and C boards cannot be expected to apply technical rules. One individual in the Bureau says that the rules of evidence are followed, but "such rules are not permitted to defeat the objects for which such boards are convened".

The cavalier attitude with which formerly the boards, and now the Coast Guard examiners, approach the rules of evidence, may be seen by their prevailing practice of accepting log books in evidence in misconduct cases, as evidence against an accused seaman. This, even

though the person making the entry is not produced, even though the person making the entry might have had no personal knowledge whatsoever concerning the occurrence, and may have based his information solely upon hearsay or rumor. There are also instances wherein the accused may have good reason to feel that the officer making the entry was one who was unduly prejudiced against him. How can one crossexamine a log book? Yet there have been many, many cases in which this has been the only evidence against an accused, and on the basis of which a seaman has had his certificate of service revoked or suspended.

Mr. KEATING. When that log book is put in evidence, do they not require the officer who made the original entry to be there for crossexamination?

Mr. HADDOCK. No; they do not. Not only do they not require him to be there, but he is very frequently not there.

Another example of the unskilled approach formerly used by the boards, and now frequently employed by the Coast Guard examiners, is the following: In a case involving the S. S. Henry Hadley, during hearings held in New York in March and April 1947, the examiner ruled that a certain surveyor's nonofficial report, containing only conclusions but no specific facts, was improper evidence, where the surveyor himself was not present to be cross-examined concerning his qualifications, and the details of his survey, et cetera. Nevertheless, when subsequently this identical surveyor's report was annexed to a report of a consul, made in a foreign port, the same examiner ruled that the survey thereby became admissible.

Furthermore, despite the fact that the particular consul's report contained a great many allusions and references concerning which the consul himself, were he on the stand, would have been barred from testifying, nevertheless, when the consul placed those same statements in a report, the examiner ruled that the entire report was admissible. If untrained minds are to pass on rules of evidence which were adopted for the protection of innocent persons and for the safeguarding of their rights, then constitutional processes become a mockery.

During World War II the duties of the board were taken over by the United States Coast Guard. While new blood was suffused, many of the old personnel were retained, and they continued in the same capacities as formerly, being blanketed into the Coast Guard as commissioned officers. Thus, there were frequently situations in which the same inspectors who had sat on the old local Bureau of Marine Inspection and Navigation, and who subsequently operated under the system of A, B, and C boards, now function under the United States Coast Guard.

Under those circumstances it was perhaps inevitable that many of the old viewpoints should be carried over. Thus we find that on November 30, 1946, Admiral J. F. Farley found it necessary to promulgate Navigation and Inspection Circular No. 71. That circular recognizes that labor disputes have frequently resulted in the filing of charges of misconduct against seamen pursuant to R. S. 4450, as amended, under circular No. 71. The Commandant required that specially qualified persons should be called in whenever a charge against seamen was rooted in a labor dispute. The issuance of this directive is an admission by the Coast Guard that generally their own

personnel lacks the qualification to deal with some aspects of misconduct cases. Subdivision (3) of the circular provides as follows:

Whenever the basis of a complaint is refusal or failure to obey an order, charges will not be preferred unless the evidence reflects that it was clearly an order and was not in the nature of a request, that it was lawfully and directly connected with the operation or safety of the vessel.

Despite this specific instruction the individual Coast Guard examiners, as they are now called, still continue to intervene in labor disputes despite a complete lack of justification therefor.

For example, on April 2, 1947, a merchant marine hearing unit in New York City found the entire unlicensed personnel of the S. S. Henry Hadley guilty of misconduct under S. R. 4450, as amended. In that proceeding, witness after witness, including officers, took the stand to testify concerning a deviation in the articles, and concerning the serious shortages in the food provisions carried aboard the vessel in direct contravention of the express requirements set forth in the shipping articles, and in 46 U. S. C. 713. Despite the fact that every single officer, including the master, admitted that at no time was there a refusal to obey a direct order, despite the fact that the entire matter involved the terms and conditions of the men's contract of employment, the examiner was able to evade circular No. 71 by the simple expedient of ruling that this was not a labor dispute.

On the other hand, charges which the crew had filed against the master of the S. S. Henry Hadley, based on his failure to properly provision the vessel as required by law, and based upon his inattention to duty, resulting in the vessel's running aground, were completely whitewashed, with the Coast Guard even refusing to file formal charges.

I would like to point out while the master was involved in an accident in which R. S. 4450 claerly covered, no action was brought against him, and yet the charges brought against the crew were not in connection with the accident at all."

At about the same time a United States Coast Guard merchant marine hearing united, also in New York City, exonerated the master of the S. S. Edwin L. Drake, based on charges of intoxication, of assault on the chief mate and other members of the crew, although here again, witness after witness took the stand to testify against the

master.

By a strange coincidence the examiner who exonerated the master of the S. S. Edwin L. Drake was the same person who found the unlicensed personnel of the S. S. Henry Hadley guilty of misconduct, and by a strange coincidence that same examiner is a person whose experience dates back to the days of the old local Bureau of Marine Inspection and Navigation.

Mr. KEATING. Is he an officer?

Mr. HADDOCK. I do not know whether he holds a commission in the Coast Guard or not. I assume he does, though.

CONCLUSION

The Administrative Procedure Act would authorize the hiring of civilian examiners by the Coast Guard. Presumably, these civilian examiners would be trained persons, better equipped to pass on the rules of evidence, and selected impartially without regard to former ties.

Congress was fully aware of the need of specially trained persons to serve in quasi-judicial capacities, and provided for civilian personnel under the Administrative Procedure Act. Our committee feels that such civilian examiners would better promote the cause of justice than the military tribunals of the Coast Guard, which have shown themselves unable to rule fairly and in an unbiased manner where unlicensed merchant seamen are concerned.

It is therefore urged that H. R. 2966 should not be adopted.

Now, I want to reiterate at this point that in writing the preparatory material put out by the Justice Department prior to the passage of the Administrative Procedure Act, we definitely got the feeling that the activities of these examiners and boards with regard to the merchant marine activities was one of the primary reasons for the passage of this act. Yet, when it comes to the question of administering this act, then Congress is asked to change its mind when it affects the people it was passed to protect, and exempt them from it, and permit the same old boards to continue that caused the act to be adopted.

Now with regard to the case load which the Coast Guard spoke of. They referred to those thousands of cases. Well, I think that is true. I think they have handled thousands of cases, but I should like to point out to the committee that those cases were not cases which should have been handled under section 4450, as revised in 1936.

Now that act contemplated that these boards would only investigate when there was a casualty or accident aboard a vessel. That was the only time they were to investigate.

Now, during wartime there was very little question raised about the Coast Guard activities in this respect because there were many new people entering the industry, young boys, and there was the job of getting the war over with, and many of the new people entering the industry were not familiar with the sea and did many things a seaman would not do, but that condition no longer prevails and we are now in peacetime.

We think this act should be administered as contemplated, and I think I would be erring on the side of being overlenient if I should estimate that there should not be more than 100 cases investigated a year in peacetime under R. S. 4450, if the investigations are carried on in accordance with the law as it reads and the intent of Congress when it passed that law that it was only for the question of dealing with casualties and accidents.

Mr. KEATING. How are the other matters of misconduct to be handled in your opinion?

Mr. HADDOCK. The master has sufficient leeway to handle matters of misconduct aboard vessels which are not of a nature to be held in the courts. There are many cases aboard ship that should be handled in civil and criminal courts, and that is the place for them. That is the place they should be handled.

Mr. GRAHAM. Mr. Haddock, at that point, would not the element of time mean a great deal if criminal charges were preferred and the ship sails? Would that not make out a condition for speedy action? Mr. HADDOCK. The merchant marine are not in favor of the Coast Guard taking quick action where they have no legal jurisdiction to do so. They are just taking upon themselves some functions which do not belong to them. Most of the proceedings which the Coast