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Mr. HADDOCK. That is correct, Judge Hobbs. That is my opinion.
Mr. HOBBs. And is not whether they have exceeded their jurisdiction a point of law rather than one of fact?
Mr. HADDOCK. With respect to that, I am not an attorney again, and I only want to tell you what my attorney has told me with regard to that specific question, that it is almost impossible to do anything about that situation in a court of law now. He has taken some of these cases to court and the conditions he has met lead him to believe the court is not the place to remedy this.
Mr. KEATING. Do you know whether that specific legal question has ever been posed and passed upon in the civil courts? Has the Coast Guard or any other hearing officer any jurisdiction other than that given him by law?
Mr. HADDOCK. No, sir. The only think I know of is one case he took to court and the ruling of the Coast Guard in that case was reversed and it did not deal with whether or not they had the legal right to move against the man. Mr. GRAHAM. Anything more, gentlemen?
Mr. KEATING. Just one other question to be sure I have your point. Even on those matters where you concede that jurisdiction exists; namely, misconduct or incompetency connected with accidents, even in those cases you feel that the Coast Guard should not handle the hearings.
Mr. HADDOCK. That is correct.
Mr. GRAHAM. Mr. Haddock, so that there may be no misunderstanding, and no witness deprived of their right to testify, we will have here the Coast Guard officers in rebuttal and we will close this hearing, so if you have any request for additional time or witnesses, make it now.
Mr. HADDOCK. I have none, Mr. Chairman. If we can be of service we also want to do so.
Mr. GRAHAM. Gentlemen of the Coast Guard, have you anything in rebuttal?
REBUTTAL STATEMENT OF STEPHEN J. SPINGARN, ASSISTANT
GENERAL COUNSEL, TREASURY DEPARTMENT, ACCOMPANIED BY CAPT. ALFRED C. RICHMOND, CHIEF, PLANNING AND CONTROL STAFF, COAST GUARD, CAPT. KENNETH S. HARRISON, CHIEF COUNSEL, COAST GUARD, AND COMMANDER R. Y. EDWARDS, COAST GUARD
Mr. SPINGARX. Yes, sir. We will be very brief.
Mr. Haddock has made two or three points which I think we should very briefly discuss.
One of the points is the Coast Guard is acting without legal authority when it investigates the holds hearings in cases not involving accidents.
I want to read from 46 U.S. C. 239, subsection (d), which provides that all acts in violation of any provision of various sections, and it names a great many sections of law, of this title and any regulations issued thereunder, whether or not committed in connection with any marine casualty or accident and all acts of incompetency or misconduct whether or not committed in connection with any marine casualty or
accident, committed by any licensed officer or by any unlicensed personnel shall be immediately investigated, and so forth.
Mr. KEATING. You are reading from what?
Mr. SPINGARN. I am reading from section 4450 of the Revised Statutes, which appears in the United States Code as 46 U. S. C. 239, and the particular subsection I was reading from was (d). I might also add that Mr. Haddock quoted at some length from a monograph by the Attorney General's committee on Administrative Procedure, which criticized the conduct of these hearings by the Department of Commerce.
Mr. LEWIS That was 246 U.S. C. what?
Mr. SPINGARN. Mr. Haddock quoted from a report of the Attorney General's Committee on Administrative Procedure, one of their mon graphs issued in 1940. It has been printed as Senate Document 186, part 10, Seventy-sixth Congress.
That was a criticism of the administration of these hearings by the Department of Commerce. This appeared in 1940 before the Coast Guard assumed these functions, but in that same monograph, the same group that criticized states: the statute confers upon the boards the power to investigate not only marine casualties, but also “any act in violation of the provisions of this title, or regulations issued thereunder, and all cases of incompetency or misconduct committed by any licensed officer or holder of a certificate of service while acting under the authority of his license or certificate of service, whether or not any of such acts are committed in connection with any marine casualty or accident." This provision is in practice exceedingly important, as nearly half of all cases involving trials of alleged offenders are complaint cases," that is cases involving alleged offenses which are unconnected with casualties.
So, I would say there is no legal question the Coast Guard has acted in accordance with the statute, but let us assume there is a legal question, then under Mr. Haddock's statement this would be
Mr. KEATING. Has that question ever been raised?
Mr. SPINGARN. Not as far as I know. Section 10 of the Administrative Procedure Act codifies what the scope of review would be in a case like this. That contains provisions that the court can set aside any action which is arbitrary, not in accordance with law, capricious, etc., or unsupported by substantial evidence.
Mr. GRAHAM. Of course, you must remember that Mr. Haddock is not a lawyer and familiar with these terms.
Mr. SPINGARN. Right. I should also like to mention that in this whole situation you have the idea of preventative action as well as merely punishment.
Take the case Captain Richmond mentioned the other day of the automobile violator. Suppose the police picked up a man speeding 80 or 90 miles an hour down a highway. There is no accident involved. However, the traffic court may well take away the man's license on the ground it should be revoked because he has indicated he is an irresponsible person, althought no accident resulted.
Mr. GRAHAM. We have an analogous situation to that in Pennsylvania. The arresting officer would arrest the man for a traffic viola
tion. Then, the traffic department, through the highway department, would summons the man for hearing for the purpose of determining whether or not his license should be revoked. The point is under that no imprisonment attaches.
Mr. SPINGARN. Thank you, Mr. Chairman.
Mr. Haddock has also made considerable point of the fact that the Administrative Procedure Act was enacted on accound of abuses under this particular statute we are dealing with.
I want to say it is our firm opinion this is not the case. The abuses to which the Attorney General's Committee refers in 19-10 were corrected long before the Administrative Procedure Act was passed in 1946. It is our opinion that had it not been for Reorganization Plan No. 3, which put these functions permanently in the Coast Guard, that is under the prior existing statute these hearings would have been exempt from the Administrative Procedure Act and that this committee and the Senate committee were under the impression that
se hearings were thus exempt when they considered the bill that became the Administrative Procedure Act.
Mr. GRAHAM. Do you believe the situation became aggravated by reason of the World War and the large number of men going into the Merchant Marine which necessitated or resulted in a large number of violations?
Mr. SPIXGARN. Unquestionably that played a large part.
In connection with the log book, Commander Edwards of the Coast Guard is here. I think it would be well to have a statement from him regarding the log book, since he is a former merchant marine captain. Mr. GRAHAM. We shall be glad to hear from him.
Commander EDWARDS. I would like to supplement Mr. Haddock's statement when he was telling you about who makes entries in this log book, because he is mistaken. The third mate or second mate or engineer never make any entries.
Mr. KEATING. Is this official log book the only one ever placed in evidence ?
Commander EDWARDS. Yes, sir.
Mr. KEATING. The deck log book and engineer log book are never put in evidence?
Commander EDWARDS. No; except in the case of a casualty.
Commander EDWARDS. Insofar as actions as to the vessel are concerned. There are many things that go in here, much of which is put in in the handwriting of the masters. It includes not only a statement of misconduct, but statements of account. It includes certain entries as to the time of the happening and matters such as closing watertight doors.
On the front page there are excerpts from the existing law relating to those matters which must be entered in this book. I will just read a few, such as deaths, births
Mr. KEATING. Births?
Commander EDWARDS. Yes. In other words, a complete list of everything the master must enter in the log book.
Under Section 4596 of the Revised Statutes, there is an excerpt of that law which sets out those penalties which the master can impose on a seaman for any of the offenses which fall within the purview of
this act. For instance, I am inclined to believe the impression is here that the master sets up and has a court martial or trial on his own account at which evidence is taken. Such is not true. If a man goes AWOL and fails to show up the absence is noted. The head of his department, the first assistant engineer, or chief mate notifies the master and the master says "When he comes back, bring him up." And he is confronted by the first mate. The master says “Is that right?": He admits or denies that it is true. The master makes an entry, “Joe has been absent from his ship" and fines the man so many days' pay.
He is supplied with a copy after the statement is signed by the master and attested to by the chief officer. The master is required to enter in the book the comment of the individual after having read this and being supplied with a copy and at that time he can enter any complaint about the procedure he wants to.
Mr. GRAHAM. May I interrupt.
Mr. GRAHAM. Then the admissions made by the accused are then entered and that is available later when the inspector comes in?
Commander EDWARDS. It is entered and also attested to by the person present when entered.
Mr. KEATING. Is the accused advised of his rights and does he know his rights?
Commander EDWARDS. That is explained to him. He may make an explanation.
Mr. KEATING. He may not know he has the right to make an explanation. He may have been sick on shore and may not know.
Commander EDWARDS. He makes a statement right there in front of the master.
Mr. KEATING. He does if he thinks of it.
I think this is what we are driving at. Under our criminal procedure in the various States, before a voluntary statement is made, the accused is always warned of his rights, whether he wishes to make a statement and that he has opportunity to have counsel. That is what you are driving at?
Commander EDWARDS. The logging of AWOL is purely an employer-employee relationship. There is no criminal statute involved.
I can just go over some of these offenses for which a master can penalize a man. There are many things that happen aboard ship a master can do nothing about. For instance, if the chief mate came up to the master and said “Joe Blow hit me in the face," the master can do nothing
Mr. KEATING. As a practical matter what would he do?
Commander EDWARDS. He would probably call the man up and say "Listen, keep your hands to yourself.” If there was any doubt as to the man's sanity, or danger to other people, he might place him in confinement.
Mr. REEVES. Are you drawing an analogy to a situation where an employer docks an employee for having missed a day's work?
Commander EDWARDS. Yes; except in this case it is covered by law.
Mr. Reeves. Your point is the master's authority extends to the civil penalty?
Commander EDWARDS. Yes, sir.
Mr. REEVES. And not criminal?
For desertion, forfeiture of all or any part of the clothes and effects he leaves on board and of all or any part of the wages or emoluments which he has then earned.
For willful disobedience to any lawful command at sea There is nothing about a lawful command in a foreign port. The ship may be tied up and the master give a lawful normal order. If the man refuses to obey it the master could not do one single thing about it.
All of these things are at sea and not in port, and may I point out the modern cargo vessel
Mr. GRAHAM. May I interrupt for the sake of clarity.
It is not in the province of the master to suspend a man's papers for these various infractions?
Commander EDWARDS. That is correct.
Commander EDWARDS. Yes; and the master does not have authority in many cases, such as in the case of assault.
I think that is about all. Mr. SPINGARN. We might put this logbook in the record, or at least file it with the Committee.
Mr. GRAHAM. Without objection, it is so ordered.
The log book referred to is, as follows (only sample sheets are reprinted):
OFFICIAL LOGBOOK-MERCHANT MARINE OF THE UNITED STATES
UNITED STATES COAST GUARD
NOTE.--Attention of masters and officers is directed the additional en ies required by the regulations for the establishment of load lines concerning the position of load lines, the operation and condition of watertight doors, airports, and other openings in the ship's hull together with periodical drills involving their use. Particular provision has been made for these entries on pages 24-28.
Supplied gratuitously by the government of the United States to American vessels in the foreign trade and the trade between the Atlantic and Pacific ports of the United States.
AOTS OF CONGRESS RELATING TO LOGBOOKS
(R. S., secs. 4290, 4291, 4292, 4596, 4597, as amended, and act Mar. 2, 1929—-U. S. C., title
46 secs. 201, 202, 203, 701, 702, and 85) SEC. 4290. Every vessel making voyages from a port in the United States to any foreign port (except ports in the British North American possessions), or, being of the burden of 75 tons or upward, from a port on the Atlantic to a port on the Pacific, or rice rersa, shall have an official logbook; and every master of such Vessel shall make, or cause to be made therein, entries of the following matters, that is to say:
First. Every legal conviction of any member of his crew, and the punishment inflicted.
Second. Every offense committed by any member of his crew for which it is intended to prosecute or to enforce a forfeiture, together with such statement concerning the reading over such entry, and concerning the reply, if any, made to the charge, as is required by the provisions of section 4597.