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found the men guilty of the other charge. He placed them on parole pending good behavior. We took appeal and on appeal we urged a number of grounds. We saidLook, Admiral Farley
Who I think is here todayhad one point, realizing that labor disputes might become involved in these things, issued a directive to you fellows, and in that thing he said, “Whenever you get a labor dispute, it should receive special handling, by special people, and in any of these labor disputes, do not find a man guilty unless you find a direct order has been given and violated.”
Despite that, they expressly found there had been no direct order at any time and no refusal to obey a direct order. They found that there has been a tacit refusal. There was also in this case the question of some of the types of evidence which they permitted to go in. For example, at one stage during the hearing a surveyor's report, taken in Durban, an official survey, was offered an an exhibit in the case by the Coast Guard. I objected to it, stating that the survey had been taken after the dispute had arisen, and it had been taken at the request of the master, and was not official, and had been taken to protect himself, and I had no opportunity to cross-examine the particular person who made the survey.
The hearing officer agreed with me and excluded it. Later on, when the consul's report was submitted by the Coast Guard, there was annexed to the consul's report the same survey, and the consul had a lot of things to say in his report, some things that he knew about, and some things that others had told him about, and a lot of things he only surmised.
The whole consul's report was received in evidence, including the very same surveyor's report which had previously been excluded. In other words, it certainly was given validity because it was attached to a consul's report.
Now, I might say that although the Coast Guard found that the captain of the Henry Hadley had not acted with good judgment in the exercise of his office as a captain, they did find there were shortages in food-nevertheless, the Coast Guard at no time took any action whatsoever against this captain.
Now, I have had any number of instances in which I have asked the Coast Guard to investigate charges of misconduct against captains and certain officers where we felt they had been guilty of misconduct and provoking instances. I might say that in almost every instance the Coast Guard has refused to take action in those cases.
Mr. KEATING. You mean by that they refused to investigate or take action after investigating, which?
Mr HAROLDS. Sometimes they even refused to investigate, and if they did investigate they would not file formal charges.
Another thing which they would frequently do would be to delay the investigation until such time as the crew members had scattered completely. They would say to me, “Well, you can not prosecute now.”
Now, on the whole, I have tried to show that the Coast Guard has not acted with that degree or impartiality which is required for an agency of this type in cases of this type. We feel that a civilian agency, if any agency is required at all, should be the one to hear cases of this type.
Mr. Keating. Certainly, some agency is required.
Mr. HAROLDS. I believe so, an agency is required, yes; but, certainly, not the military agency which the Coast Guard represents. We, therefore, are opposed to this particular bill.
I will try to find that citation before I leave. There is a suit which governs entries in log books. The law says when a seaman is to be fined, a log book shall be entered in the official records, if I recall correctly, 24 hours after the incident; the log entry shall be read to the seaman, or a copy shall be furnished to him, and his reply, if any, shall be noted therein. The law further goes on to say that in any subsequent judicial proceeding, having jurisdiction over the case, the log book may be excluded from evidence in the discretion of the judge if the entries have not been made in the manner required by law.
I might say that invariably the Coast Guard has accepted log book entries even though they have not been proven to be made in the manner required by the law.
Mr. KEATING. Is that discretionary?
Mr. GORSKI. How would the hearings conducted by a civilian person change the situation?
Mr. HAROLDS. We think not only should it be a civilian person, but we think also that the person should be of legal training.
Mr. GORSKI. And follow legal rules of evidence ?
Mr. HAROLDS. To the same extent that other agencies follow legal rules of evidence. We are not asking for any special favor. We do not want to be subjected to any type of evidence which other agencies do not use.
Mr. REEVES. Taking away from the Coast Guard the jurisdiction will not entirely correct the situation so far as the use of the log book; is that correct?
Mr. HAROLDS. I believe that if we have legal civilians sitting on these things that it will remove a lot of the source of complaint.
Mr. REEVES. Would you favor enactment of a measure which would legislatively correct that situation?
Mr. HAROLDS. I would, and I have recommended such a change, only last week when I appeared before a Joint Committee of the Merchant Marine and Fisheries Committee. I did make such a suggestion there. However, I think they are interested primarily in recodification rather than revision.
Mr. LEWIS. Thank you very much.
I understand that the gentleman who has just testified has to go back to New York City shortly.
I was wondering if the Coast Guard has anything to say about his testimony.
Mr. HAROLDS. I have the citation now. It is reported in 1947 American Maritime Cases, 635 and 636.
STATEMENT OF JOSEPH H. VOLPIAN, REPRESENTING THE SEA
FARERS INTERNATIONAL UNION OF NORTH AMERICA
Mr. VOLPIAN. My name is Joseph H. Volpian. Mr. LEWIS. Whom do you represent? Mr. VOLPIAN. I represent the Seafarers International Union of North America.
Mr. LEWIS. Is that CIO or AFL?
Mr. VOLPIAN. The Seafarers International Union of North America numbers approximately 90,000 unlicensed seagoing personnel whose sole means of livelihood is derived from their service on merchant vessels, which sail on all oceans and the Great Lakes. Our membership has a very real interest in the proposed bill.
The writer of this brief has been in charge of the welfare department of the Union since 1943. His office is at the union headquarters in the city of New York. Part of his duties as welfare officer includes his appearance before the Coast Guard hearing units on behalf of accused seamen. He has appeared in at least 200 cases of alleged misconduct before the Coast Guard. The writer is present at the request of his union to oppose the passage of the bill.
The union is as much interested in disciplining its members for infractions of the rules and laws aboard vessels as are the Coast Guard and the operators of the ships. We have a set-up in our constitution where anybody who is charged with misconduct aboard a ship can be tried and punished according to the gravity of his offense. We realize that when a seaman doesn't perform his duties as he should, it places an extra burden on his fellow crew members and at the same time injures the reputation of the union of which we are all proud.
The writer has been going to sea since 1923 and has sailed in the black gang or engine room department of ships during this time. He has come to know seamen, being one himself. He is familiar with the duties of the officers and the problems that exist aboard ships and therefore can without fear of contradiction speak upon maritime matters from the viewpoint of the unlicensed personnel.
The merchant marine has always been a civilian occupation long before our Government was formed. The only time it might have been considered an army of the military was during the last two wars when it came under the jurisdiction of the Navy. It differs from a military organization in that there is no drafting or enlistment among the men. A seaman can sign for one trip and at the temination of the voyage quit or make another trip as he sees fit. If his superior officer doesn't choose to employ him for a further trip, he can let the man go. There are no provisions made for pensions or any other benefits that a soldier or sailor would be entitled to as a result of being a member of the armed services.
The United States merchant marine has always been under the jurisdiction of the Department of Commerce. This, in our opinion, is the proper place where it belongs because all the activities of the merchant marine have been in aiding the exchange of goods through water-borne commerce from one country to another and from one coast to the other.
The Congress has passed certain laws which have been on our books for many years, whereby adequate provisions have been made to enforce discipline. For instance, if a crew member without permission stays ashore 1 day from the vessel, the master is allowed to "log" or fine him 2 days' pay for the day he missed. There is a logging or penalty provided for every infraction of the rules. In addition, if the offense is serious, the master can place the man in irons and feed him on bread and water for as long as he sees fit. The master may restrict a seaman to the vessel and not allow him shore liberty to which he would be entitled when the ship reaches a foreign port.
If in the event a seaman misses his vessel, he immediately forfeits all his pay together with all his personal belongings. Nowhere else in the world are such strict penalties imposed for these infractions.
If a person who works ashore fails to appear on his job for a day, all he loses is his day's pay. If he decides to quit the job for some reason, he doesn't forfeit his back pay or his personal belongings, but is entitled to them regardless.
The law also provides that the master is in sole command of the ship and all his crew is answerable to him.
The law, while being very strict in its provisions, has been adequate to handle all problems that arise on a vessel. In addition, a seaman is answerable if he commits a felony to the Federal authorities and is subject to severe fines and imprisonment if he violates the law.
At the inception of the last war, the late President of the United States, realizing that victory could not be attained except with the cooperation of the merchant marine and to expedite the transfer of war goods to our allies, placed it under the jurisdiction of the Navy. This was not done to discipline seamen because discipline has always been maintained on merchant vessels, but it was done primarily for the purpose of the movement of ships where the military authorities deemed they were necessary.
The Coast Guard, likewise, which is regularly attached to the Treasury Department, was also put under the jurisdiction of the Navy, and the Navy turned the merchant marine over to the Coast Guard.
With victory won, the Coast Guard was turned back to the Treasury Department, but it refused to relinquish its hold on the merchant marine but instead, is trying to keep it under its own jurisdiction. There is a very good reason for this attitude.
During the war, the Coast Guard became top heavy with admirals, captains, commanders and lieutenant commanders. Some of these people are desirous of holding on to their positions, knowing full well that they could not get comparable salaries and conditions in civilian life as they receive by being officers in the Coast Guard. More “brass” in the Coast Guard means that they must find some excuse to justify keeping these officers in the service.
In short, it is desirous of maintaining its hold on the merchant marine to keep these men in their positions. All this means that the taxpayers will be required to spend unnecesary millions of dollars because not only are these extra officers required, but likewise, a full office force must be maintained, such as stenographers and clerks, all of which has heretofore been handled by the Department of Commerce at a fraction of what it would cost if the Coast Guard took over.
It is well known that the United States Coast Guard is a military organization. It was formed for the purpose of saving lives at sea along our coasts. It has done a commendable job and in the writer's opinion it should devote all its time and attention to just this service as no other group can perform these duties as well as the Coast Guard.
From what we have read and learned, there is no civilian occupation or industry under the authority of a military organization during peacetime. It is repugnant to all our concepts of freedom and liberty. The founders of this country have rightly placed the President of the United States, a civilian, as head of the armed forces, as it is well known that the attitude of the military is far different from that of the civilian. There is an almost indescribable caste system amongst the armed forces. The officers look down on the ordinary soldier or sailor and in the same way, the officers of the Coast Guard have shown no sympathy to the merchant seamen.
During the war, the Coast Guard set up what is called hearing units for the purpose of further disciplining seagoing personnel in addition to the penalties provided by law as outlined above. These units work somewhat in this fashion:
An officer would examine the logbook and speak to the officers of the vessel concerning any infractions. Assuming a seaman was guilty of coming aboard ship an hour late, this would be entered in the log book and the man would be fined by the master. The investigating officer would then issue a subpena to the man notifying him to appear at the office of the Coast Guard. In the meantime, his wages would be held up contrary to law as provided in the statutes that a seaman receive his pay within 48 hours after the vessel discharges its cargo.
He would then appear before the investigating officer who, just reading the logbook, determines if the man should be tried. If he finds in the affirmative, he then issues a set of charges or an indictment and informs him that he can get counsel and that he can subpena his witness. By the time this advice is given to the seaman, his shipmates, having been paid off, scatter to all parts of the country and it is a virtual impossibility to procure witnesses in his own behalf.
The investigating officer then takes over the role of examining officer or prosecuting attorney. He chooses his own hearing officer or judge. No jury is chosen and he is not tried before a jury of his peers, which • is a constitutional right of which he cannot avail himself. The hearing officer acts as judge and jury and in many cases becomes the district attorney.
If the master who entered the notation in the logbook is not present, the logbook then is allowed in evidence and becomes prima facie proof of guilt.
The accused has not been given an opportunity naturally of being faced by his accuser and of course cannot cross-examine the logbook, all of which is contrary to the letter and spirit of the Constitution.
Very often, the master who makes the entry in the logbook, gets his information from a third party and therefore the entry itself is nothing but hearsay evidence which again is contrary to all law as we practice it in the United States. The burden of proving guilt is not placed upon the accuser as is done in all proceedings, but immediately the burden of proof shifts to the accused to prove that he is not guilty.
It has been our experience that the men who act both as examiners and hearing officers are not fitted for these jobs either by temperament, training, or experience. They are not familiar with the problems that arise on a merchant vessel. Those few who have gone to sea have had service on a military ship, which is entirely different from that of a merchant vessel and it seems highly unfair to have a man sit as judge and jury in the trial of a merchant seaman when he is not familiar with the customs and usages which pertain aboard merchant vessels.