Lapas attēli
PDF
ePub

mandant will not consider evidence which is not a part of the record. The decision of the Commandant on appeal shall be final.

$ 137.11-15 Temporary documents. Any person intending to appeal from the decision of the examiner to the Commandant may file with the examiner who rendered the decision or the Commander of the Coast Guard district in which the hearing was held a written request for a temporary license or certificate of the same type and character as that suspended or revoked by his decision. If this request is filed with the District Commander he shall immediately transmit such request to the examiner who heard the case in the event the case has not been forwarded to the Commandant, otherwise the request shall be forwarded to the Commandant. Except in the case of wilfulness, or that in which public health, interest, or safety requires otherwise, the examiner or the Commandant may issue a temporary license or certificate of the same character and legal effect as that suspended or revoked but subject to such terms and conditions as he may prescribe except that it shall be effective for a definite period of time, which may be extended from time to time, or until the final determination of the appeal is made. The request for a temporary license or certificate and the action of the examiner or the Commandant on the request shall be a part of the record.

SUBPART 137.13-WITNESSES AND WITNESS FEES

$ 137.13–1 Witnesses and witness fees. The regulations regarding witnesses and witness fees are set forth in Subpart 136.11 of this subchapter.

SUBPART 137.15--EVIDENCE OF CRIMINAL LIABILITY

§ 137.15-1 Referral to Attorney General. (a) If as a result of any investigation or other proceeding conducted hereunder, evidence of criminal liability on the part of any licensed officer or holder of certificate of service or any other person is found, such evidence shall be referred to the Attorney General.

(b) Investigating officers shall determine whether proceedings under Title 46 U. S. Code section 239 should be instituted or concluded before criminal action is initiated or completed or whether action should be deferred pending outcome of the criminal action in Federal or State courts. One controlling factor will be whether the witnesses will be available if the hearing is delayed.

$ 137.15–5 Use of judgments of conviction. (a) The judgment of conviction by a Federal court is res judicata of the issues decided by that judgment. Where acts forming the basis of the charges in a Federal court are the same as those involved in proceedings under Title 46 U. S. Code section 239, the said judgment of conviction is conclusive in the latter proceedings. The person charged may not challenge the jurisdiction of a Federal court in proceedings under Title 46 U. S. Code section 239 and evidence offered to challenge such jurisdiction will not be admitted.

(b) Where the acts involved in a judgment of conviction of a State court are the same as those involved in proceedings under Title 46 U. S. Code section 239 the judgment of conviction is not res judicata of the issues decided. However, where the acts involved in the State court judgment of conviction are the same as those involved in proceedings under Title 46 U. S. Code section 239, such judgment of conviction is admissible in evidence in the latter proceedings and of itself constitutes substantial evidence adverse to the person charged. It is, however, rebuttable.

SUBPART 137.17--DISCLOSURE OF RECORDS

$ 137.17–1 Statements of witnesses and exhibits. Except as provided in $137.17-10, recorded statements of witnesses and exhibits taken in the course of a disciplinary investigation shall be made available for inspection and examination during usual business hours at the appropriate Coast Guard district office or at Coast Guard Headquarters, Washington, D. C. Copies of these records will be made available on written request to the District Commander or the Commandant. If extra copies of the records are available they will be furnished without cost to paties in interest. If sufficient copies are not available, extra or photostatic copies will be made at the expense of the parties in interest requesting such copies.

8 137.17–5 Final opinions nad orders. There shall be maintained at Coast Guard Headquarters, Washington, D. C., a file nf final opinions and orders in adjudication of disciplinary proceedings, w in its complete form is h

[ocr errors][merged small]

be confidential for the reason that disclosure would be prejudicial to the individual or vessel to which it relates without furthering the public interest, however, such file may be inspected or examined after the names or other identifying data has been deleted.

§ 137.17–10 Records held confidential. Administrative reports of investigating officers or examiners contained in any disciplinary record, or the investigation or disposition of charges during an investigative non-public stage and before the institution of formal proceedings; documents, memoranda or correspondence of an internal administrative nature; and testimony, documents and other data which should for security reasons not be disclosed; are held confidential because disclosure of information would be prejudicial to the individuals to whom it relates without furthering the public interest and therefore will not be made available for public inspection or release.

$ 137.17-15 Transcript of disciplinary record. (a) A complete transcript of a disciplinary record will be made available to any person whose license or certificate is revoked or suspended for the purpose of taking an appeal pursuant to the regulations in Subpart 137.11, or, upon specific request and for good cause shown by the person immediately concerned. Except as provided in this part, transcripts of records in disciplinary proceedings are matters of a confidential nature and are not to be made available for public inspection or release.

(b) The eligible person requesting a transcript, other than for purposes of appeal, where no extra copy is available, shall pay the costs for having it photostated, copied, or transcribed at the commercial rates charged for such work within the locality where the record is kept.

(c) Subject to the payment of costs, as provided in paragraph (b) of this section, the transcript of testimony taken in such disciplinary proceedings will be furnished to any firm, person or agency upon a showing satisfactory to the Commandant that the applicant has a real founded interest in such transcript in that such material is desired for the purpose of assisting in the prosecution or defense of litigation, or prospective litigation, involving civil rights growing out of the incident or incidents under investigation.

$ 137.17–20 Production upon subpoena. Where requests for information or material are denied for any reason, the applicant will be advised that the document or material may be produced upon service of a subpoena duces tecum from a court of competent jurisdiction, provided such material is not affected by security considerations.

§ 137.17–25 Testimony by Coast Guard personnel. (a) No person in the service of the Coast Guard shall, without the prior approval of the Commandant, give any testimony with respect to any investigation or any other official proceedings in any suit or action in the courts.

(b) An affidavit by the litigant or his attorney, setting forth the interest of the litigant and the information with respect to which the testimony of such officer or employee is desired, must be submitted before permission to testify will be granted. Permission to testify will, in all cases, be limited to the information set forth in the affidavit, or to such portions thereof as may be deemed proper.

SUBPART 137.21-CONSTRUCTION OF REGULATIONS AND RULES OF EVIDENCE

137.21-1 Construction of regulations. The regulations in this part shall be liberally construed to insure just, speedy and inexpensive determination of the issues presented.

$ 137.21-5 Adherence to rules of evidence. As hearings under this part are administrative in character, strict adherence to formal rules of evidence is not imperative. However, in the interest of orderly presentation of the facts of a case, the rules of evidence should be observed as closely as possible. Con. siderable latitude should be extended to the person charged who does not have legal counsel but investigating officers should be required to conform more strictly to the rules of evidence. However, the examiner shall exclude from the record, insofar as practicable, irrelevant, immaterial, and unduly repetitious evidence. The decision of the examiner must be supported by reliable, probative and substantial evidence.

Dated: October 7, 1947. [SEAL)

MERLIN O'NEILL, Rear Admiral, U. 8. Coast Guard,

Acting Commandant.

[F. R. Doc. 47-9210 ; Filed, Oct. 13, 1947 ; 8:53 a. m.]

well car

Mr. HAND. The investigation of casualties and suspensions and revocation of merchant marine licenses and certificates is practically the same as those used throughout the war. They were made up and promulgated after a public hearing where all parties were given a chance to express their views. My information that there was no objection to the regulations offered by the representative of the licensed officers or seamen at that time. The only objection that was ever made in connection with the promulgation of these regulations had to do with a minor point in connection with the disposition of records. So, it seems to me that the regulations that were promulgated are fair. They were not objected to. It seems to me the record is clear that they have been

very ried out. I think that is indicated most clearly by the testimony previously given by our colleague, Mr. Latham.

I think the record will show that out of all the cases that have been handled that there were very few, I think something like 10 percent, which resulted in appeals, and no appeal, as far as I know, has succeeded; that is, there has been no reversal of the Coast Guard examining officer in this connection.

Now, in respect to the question of whether or not this proposal seems to deviate from the Administrative Procedures Act, it seems to me it does not.

Section 7 (a) of the act, Public Law 404, Seventy-ninth Congress, reads like this:

There shall preside at the taking of evidence, (1) the agency; (2) one or more members of the body which comprises the agency; or (3) one or more examiners appointed as provided by this act, but 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 especially provided for by or designated pursuant to statute.

It seems to me that language indicates a rather clear exception that type of procedure, this type of examination, was intended to be excluded from the provisions of the Administrative Procedures Act.

It seems to me that the Coast Guard officers, acting in this capacity as hearing officers, contributed something more than civil-service examiners could contribute. If that is so, an examination of the legislative history of the Administrative Procedures Act, and the discussions that took place in the record at that time, we find a statement by the chairman of the Senate Committee on the Judiciary that section 7 of the act was intended to preserve special statutory types of hearing officers who contribute something more than examiners could contribute.

I think that is the situation here.

I would like, with your permission, to leave this memorandum in the record.

That will conclude my testimonỳ, and I thank you very much for the privilege.

Mr. GRAHAM. That will be exhibit B. (The document referred to follows:) Section 7 (a) of the Administrative Procedure Act reads in part as follows: “but nothing in this act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute.”

In the Legislative History of the Administrative Procedure Act (Senate Document No. 248, 79th Cong., 2d sess.) I find on page 325 the statement of the chairman of the Senate Committee on the Judiciary that section 7 of the APA was intended “to preserve special statutory types of hearing officers who contribute something more than examiners could contribute."

I feel that Coast Guard officers acting as hearing officers contribute something more than civil-service examiners could contribute. Those Coast Guard officers used for this duty have had special training in the hearing procedures, but more than that, they are skilled in the seagoing profession and are able to rule justly not only on matters of fact which the civil service examiner could do as well, but also on matters concerning judgment, competence, unskillfulness, and negligence of merchant marine officers and unlicensed men. Rulings on these are required by Revised Statutes 4450 and the officer with a broad background of seagoing experience is much better qualified to rule on them than is the civil service examiner whose background is mainly legal.

Mr. GRAHAM. Have the members any questions?

Mr. KEATING. Mr. Hand, I understood that you felt that the Coast Guard had done a creditable job in handling these hearings to date. Am I correct in that?

Mr. Hand. Yes, you are correct, Mr. Keating. But I do want to say this. I want it clearly understood that that statement does not proceed from my intimate knowledge of actual hearings conducted. It proceeds from such examination as I have been able to make of this subject and also perhaps a prejudice that I have formed in favor of the Coast Guard from my intimate association with them. I think they do a pretty good job in everything they undertake.

Nr. KEATING. I know of the gentleman's eminent reputation for fairness in these matters, and I know the gentleman would subscribe to the principle that the officers and the seamen should be treated with even-handed justice.

Mr. HAND. Undoubtedly.

Mr. KEATING. Is the gentleman aware of the fact, has it ever been brought to his attention, that among the cases investigated by the Coast Guard, and then prosecuted, the percentage of cases prosecuted in the case of seamen is very, very much greater than the percentage in the case of officers? Has that fact ever been brought to your attention?

Mr. Hand. No. I would have no doubt that that was so. It would seem to me it would necessarily be so, with a greater number of persons and somewhat less standard of discipline in the officer class

Mr. KEATING. I did not make myself clear, if you gained the impression that the number of persons involved entered into it, because I was speaking only of percentages. Unfortunately, I do not have the testimony previously given.

Mr. Hand. Relative percentages—I see what you mean.

Mr. KEATING. In other words, if it were a fact that among the officers, of the cases investigated, some 20 percent were prosecuted, and among the enlisted men some-80 percent, might that be a factor possibly altering, to some extent, your present viewpoint?

Mr. HAND. It might be, if the facts involved in the various cases did not warrant that apparent discrimination. It is pretty hard to answer unless you know all the facts.

Mr. KEATING. I do not want to have the gentleman feel that those figures are in any degree accurate. All I remember is that it was brought out in previous testimony that there was a very great discrepancy between the two percentages, which perhaps led some to feel

that there was some favoritism to officers not shown to the seamen. I know you would subscribe to the principle that that should not happen.

Mr. Hand. Very definitely.

Mr. KEATING. In speaking of the Coast Guard and saying, in your judgment, without intimate knowledge of the situation, you felt that they did a creditable job, do you have any reason to feel that a civilian agency would not be likely to do a creditable job?

Mr. HAND. I would say this to the gentleman: It seems to me that in matters of this character which are all necessarily having to do with the sea and with maritime activities, a maritime arm of the Government, such as the Coast Guard, has a better knowledge and better means of conducting fair hearings and enforcing these rules than a civilian agency would, I would think.

Mr. KEATING. As to the technical questions of running a ship, and that sort of thing, you are speaking now, aren't you, of those technical questions?

Mr. Hand. Yes; and I suppose a great many of these matters of discipline have some direct or indirect bearing on the operation of a ship.

Mr. KEATING. I mean, it does not take an expert to tell whether a man is drunk.

Mr. Hand. It does not take an expert to do that, nor to administer justice. I do think expert knowledge is helpful in this character of a proceeding

Mr. KEATING. Of course, to a certain degree that would be true of a hearing commissioner in any specialized field of activity. Do you know of any other cases where hearings are sought to be held by other than the established agency under the Administrative Procedures Act?

Mr. HAND. No, I do not. I am not sufficiently familiar with the subject to be able to say whether there is or not. It may well be, but I do not know about it personally.

Mr. KEATING. The gentleman's statement that the Coast Guard was not seeking this assignment, I take it, is not founded on any more intimate knowledge of the situation than his statement that the Coast Guard was doing a good job?

Mr. HAND. It has been my experience with the Coast Guard that they take what Congress gives them. They do not make any undue pressure for any authority. If they are supposed to do a job and

job to do, they, naturally, seek the necessary legislation to do it. It has not been my experience, as chairman of the legislative subcommittee, that they exert any pressure to get additional authority. I do not think they are seeking it.

I am not officially speaking for the Coast Guard. I do not think they are seeking it.

Mr. KEATING. Are you familiar with the way they have followed and sponsored the bill now before us and the previous one which was before us?

Mr. HAND. I am. I think that is because of this backlog of work that they are not able to accomplish because of the legislative situation. I think if Congress would say, “You have nothing more to do with this and close your files and forget it," I don't suppose they would mind. But, there is a job to be done. Someone has to do it.

« iepriekšējāTurpināt »