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in account with
I acknowledge having received the articles and cash as charged above.
Mr. LEWIS. You mean to say the master has no authority to take any action at all, even where a man is killed aboard another ship?
Mr. SPINGARN. The only thing he could do is to prevent that man from killing somebody else by putting him in irons. We have had cases where the authority to place a man in irons has been questioned.
Mr. GRAJIAM. Is there anything else?
Mr. SPINGARN. Just one other thing and that is in connection with submitting these logbooks in evidence before the Coast Guard hearing. In the last sentence of the excerpt from Section 4597 I read “in any subsequent legal proceeding, the entries hereinbefore required shall, if practicable, be produced or proved, and in default of such production of proof the court hearing the case may, at its discretion, refuse to receive evidence of the offense."
Mr. GRAHAM. Your logbook is the first thing?
Mr. KEATING. It is a fact some men are convicted on the basis of the logbook?
Commander EDWARDS. I served overseas and also more recently in New York before coming to headquarters and I have never had a case wherein the logbook constituted the sole evidence against anyone.
Mr. KEATING. You know of none.
Captain HARRISON. I may say I review all these cases for the Commandant and in my experience I have run across but few cases where the logbook is the sole evidence.
There are many cases in which the logbook is introduced, but there are additional documents and testimony.
Mr. REEVES. You do regard the logbook as some evidence?
Captain Harrison. Oh, yes; and the hearing officer would give such weight to it as may be warranted.
Mr. GRAHAM. It becomes, in the end, while not complete evidence or total evidence; yet it is prima facie evidence of the entry of the complaint.
Mr. KEATING. Is it prima facie evidence of guilt ?
Mr. LEWIS. It depends on the charge.
Mr. KEATING. And it is considered as evidence of guilt whether or not the entry is made based on the personal knowledge of the one making the entry or complaint. Is that right?
Captain HARRISON. Well, I might say that the accused and his counsel could object and by cross-examination develop their side.
Mr. KEATING. Do you require the one making the entry to be present to subject himself to cross-examination ?
Captain HARRISON. We usually require the logbook to be authenticated as an official document.
Mr. KEATING. By someone who has knowledge ?
Captain HARRISON. By someone who has custody of the book, preferably the person who made the entry, if we can get him.
Mr. KEATING. But sometimes by a man whose cross-examination would elicit nothing as to the truth of the statement in the book. Is not that right?
Captain HARRISON. That may develop in some instances, but, as I say, we endeavor to have other testimony and other evidence which would remove any doubt.
Mr. GRAHAM. Captain, as I look on it, knowing this is not a criminal proceeding, there is some confusion as to the term "double jeopardy” and, as I look at it, it is a matter that can be compensated for by reestablishment of the license and payment to the individual. Therefore, it is not a finding of guilt at all. It is in the nature of a contract that exists between the master and the man on the ship. The man is confronted with a charge and he can admit or deny it as he sees fit. Is that a correct statement ?
Captain HARRISON. Yes, sir.
Mr. HADDOCK. No, sir. I would say in most instances what he says is correct. There is some that he says that is not correct.
Mr. KEATING. One of the penalties that can be imposed is to revoke the man's papers.
Captain HARRISON. Yes, sir.
Mr. KEATING. But his means of earning a livelihood in the merchant marine is gone?
Captain HARRISON. That is right.
Mr. GRAHAM. Is there any provision for the restoration after papers are revoked?
Captain Harrison. In the case of revocation, we have a policy, if the facts warrant it, whereby a person may be permitted to sit at a new examination.
Mr. Lewis. Is that policy or law?
or finding of
Captain HARRISOX. I would say the logbook entry in some instances has been part of the evidence. I do not know of any case that it has been the only evidence.
Mr. REEVES. Let me put it a little differently. Is it a fact in some cases there would not be a finding of guilt but for the logbook entry in connection with other evidence?
Do you understand my question?
Captain HARRISON. Yes. I think there are many cases where findings would stand up without the logbook being introduced.
Mr. REEVES. Can you think of any cases in which a conviction would not stand up without the logbook in evidence!
Captain HARRISON. I cannot recall offhand. Do you?
Captain HARRISON. I would like to emphasize we are dealing with a proceeding that is not criminal.
Mr. KEATING. The effect is just as disastrous as if you put a man in jail when you deprive him of his livelihood.
Mr. REEVES. Especially when that is done on the basis of a logbook entry which for all purposes in the proceeding would be hearsay and not admissible.
Mr. SPINGARX. The statute itself provides the logbook is to be admissible in any proceeding.
Mr. GRAHAM. May I make this suggestion: The situation is that neither you anticipated it, nor did Mr. Haddock, but I was going to ask you if you have any law on the fact or any sustaining evidence you can give us, because clearly in the minds of certain members of this committee the impression is the logbook becomes just not of factual interest but a silent witness which the accused cannot combat.
Mr. LEWIS. That is right, which he cannot cross-examine.
Mr. GRAHAM. With that in mind, it might be well to close this hearing. We do not want to prevent anyone from an opportunity to be heard.
Would you like to have them continued or close our hearings today?
Mr. SPINGARN. Mr. Chairman, if I may so, I think we would prefer to have them closed because of the urgency of this matter in point of time. If you wish we could present a memorandum on the logbook.
Mr. GRAHAM. And Mr. Haddock the same?
Mr. SPINGARN. Colonel Keating, you raised the question whether the Coast Guard would like to have its court-martial cases reviewed by the Navy, as a parallel. I want to point out the merchant marine is not an integrated service like the Coast Guard. It is an industry. There is no single group that could regulate that industry except the Federal Government. No union, for example, has jurisdiction over the whole industry.
Mr. KEATING. But is there not a feeling with regard to the Coast Guard on the part of the merchant marine somewhat akin to the Coast Guard's feeling regarding the Navy, and would it not lead to more unrest, disconent, and dissatisfaction to have the merchant marine proceedings reviewed by the Coast Guard than to have it done by some civilian agency of the Government, purely civilian?
Mr. SPINGARN. I can only say that the bulk of Mr. Harrock's objections were against the civilian agency which formerly handled these proceedings.
Mr. KEATING. But in response to my direct question he said that he did oppose the Coast Guard reviewing the proceedings.
Mr. SPINGARN. That is correct.
Mr. GRAHAM. Have you all finished, gentlemen? I must get this meeting concluded.
Mr. SPINGARN. I wish to submit a prepared statement for the record. It presents an orderly form the considerations which we have told you about at these hearings, necessarily in rather choppy fashion.
Mr. GRAHAM. Without objection, it will be included. (The prepared statement is as follows:)
WRITTEN STATEMENT OF STEPHEN J. SPINGARN, ASSISTANT GENERAL COUNSEL
TREASURY DEPARTMENT, PRESENTED TO SUBCOMMITTEE No. 3 OF THE COMMITTEE ON THE JUDICIARY, HOUSE OF REPRESENTATIVES
The purpose of H. R. 2966 is to amend the Administrative Procedure Act to permit commissioned officers of the Coast Guard rather than civilian examiners to preside at hearings for the suspension or revocation of merchant marine officers and seamen's licenses and certificates.
We are laying this matter before you at the instance of the House Appropriations Committee. It involves an issue between the Administrative Procedure Act and economy on which we respectfully request the decision of this committee.
I should like to state at the outset that the Treasury Department and the Coast Guard (which operates under the Treasury in peacetime) consider this a very urgent matter because on and after June 11, 1917, under the requirements of the Administrative Procedure Act, it will be necessary for these hearings to be conducted by civil service examiners provided for in section 11 of the act. If the Committee on the Judiciary should decide not to approve this bill, it will be necessary to submit an appropriation estimate for the employment of civilian examiners. Moreover, if civilian examiners must be used, considerable time will have to be spent in recruiting and training them, since they cannot be selected overnight and go to work on June 11.
If this bill is not enacted before June 11, 1917, and if no appropriation is provided for the employment of civilian examiners, the Coast Guard will be in the position of having to discontinue the hearings or of conducting them in violation of the Administrative Procedure Act.
Under section 4450 of the Revised Statutes, as amended (U. S. C., title 46, sec. 239), the Coast Guard, among other matters. conducts disciplinary proceedings looking to the suspension or revocation of licenses or certitiactes of merchant marine officers and men on grounds of incompetence, misbehavior, negligence, unskillfulness, endangering of life, or violation of various laws and regulations governing the merchant marine. These proceedings are normally conducted through 48 offices in the United States and 11 abroad. Approximately 18,000 cases are investigated annually, of which about 5,000 actually go to hearing.
Section 4450 of the Revised Statutes was formerly administered by the Bureau of Marine Inspection and Navigation of the Department of Commerce. In 1942, however, these functions were transferred to the Coast Guard and the transfer was made permanent by Reorganization Plan No. 3 of 1946.
At the present time, as has been the case for several years, hearings in cases for suspension or revocation of licenses and certificates are conducted by commissioned officers of the Coast Guard. However, these proceedings constitute cases of adjudication which, under the Administrative Procedure Act, must. after June 11, 1947, be presided over by either the "agency"—which under the terms of the act would be the Commandant of the Coast Guard--or by the civil service examiners for which the act makes special provision in section 11.
The Treasury Department has estimated that 43 of these examiners would be required. This large number is due to the number of ports which must be serviced by the Coast Guard and to the necessity for prompt action when a ship arrives. In general, it is not practicable to docket cases for hearing at future dates. Rather, investigations must be made and hearings held before the ship turns around to leave, a matter of a few hours or a few days, and before witnesses are dispersed on shore leave. Accordingly, it is considered necessary to have hearing officers available to act immediately even though, in a number of ports, the occasion for the institution of disciplinary proceedings arises but occasionally.
A civilian examiner at one of these ports would not have sufficient adjudicatory work to keep him busy.
It is true that examiners may, under the Administrative Procedure Act, be assigned other duties not inconsistent with their duties as examiners. However, the Coast Guard is a military organization which does not lend itself well to the integration of civilian personnel for the performance of regular Coast Guard activities in the field.
Moreover, there is the problem of securing through the Civil Service examiners who are familiar with merchant marine conditions and practices. A body of such men exists now in the Coast Guard but few of them would want to surrender their commissions to accept civilian examiner appointments. While eventual development of a body of experts in the Civil Service is doubtless possible, it probably would be a slow process. Thus, not only would civilian examiners possess little or no training in merchant marine matters, but they would occupy positions at a salary level comparable to that of a Coast Guard officer of years of experience. It follows that the civilians would not be qualified to perform extra duties of responsibility equivalent to a Coast Guard officer of similar grade.
In compliance with the Administrative Procedure Act, the Treasury Department submitted to the Bureau of the Budget an appropriation estimate of $281,933 for examiners. In view of circumstances which I have described, however, the Budget Bureau decided that, in the interests of efficiency and economy in government, the estimate should be eliminated and an amendment to the Administrative Procedure Act requested. Accordingly, there was substituted for the estimate in the appropriation bill a proposed amendment to section 7 (a) of the Administrative Procedure Act, adding to section 7 (a) the same language now proposed to be added by section 1 of the bill under consideration. This proposed amendment was designed to permit Coast Guard officers to continue to serve as hearing officers as an additional rather than a primary duty. If civilian examiners should be appointed, hearing and deciding cases would need to be their sole or primary function. Testimony on this proposedl amendment was given before the Treasury Subcommittee of the House Appropriations Committee (see hearings on the Treasury Department appropriation bill for 1948, pp. 663-667). The Treasury position was explained and it was suggested that the Appropriations Committee might wish to consult with the Judiciary Committee on what should be done in the matter. The Appropriations Committee deleted the proposed exemption, its action being explained as follows in its report (H. Rept. No. 103, Soth Cong., 1st sess., p. 17):
"A proposal of new language for 1948 was incorporated in the Budget estimates designed to amend section 7 (a) of the Administrative Procedure Act of 1946. The effect of the language would have been to permit commissioned officers of the Coast Guard, rather than civilians to conduct hearings connected with the operations of the merchant marine. It was represented to the committee that if this language were approved it would circumvent a future expenditure of upward of $200,000 which otherwise would eventuate, if amendment of existing law does not take place prior to June 11 of this year. The committee has deleted the proposed language from the bill solely because of the fact that it represents a change in existing legislation and hence is without the proper purview of the Appropriations Committee. In making the elimination, however, it is to be understood that the committee neither approves nor disapproves the legislative proposal involved in the proposed change. This is an important matter, and it is to be hoped that the Treasury Department will make prompt representation to the appropriate legislative committee of the House, in order that due consideration can be given to the merits of the proposal prior to the date (June 11, 1948) [this date should read 'June 11, 1947'] when the provisions of the Administrative Procedure Act become applicable to this question."
It may be worthy of mention that at the time the Administrative Procedure Act became law (June 11, 1946), proceedings under section 4450 of the Revised Statutes were excepted from the requirements that the hearings be conducted by civil-service examiners. I doubt if during the consideration of the bill that became the Administrative Procedure Act it was contemplated that these examiers would have to be used for the merchant marine hearings. I will try to explain briefly the reason for this.
Sertion 4450 of the Revised Statutes, and regulations issued thereunder by the Department of Commerce, provided for a marine board, consisting of representatives of the Bureau of Marine Inspection and Navigation designated by the Director of the Bureau, to conduct the disciplinary proceedings leading to the suspension or revocation of licenses or certificates held by merchant sea