CONDUCT OF DISCIPLINARY HEARINGS OF COAST

GUARD COMMISSIONED OFFICERS

MONDAY, MARCH 15, 1948

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE No. 3, COMMITTEE ON THE JUDICIARY, Washington, D. C.

The subcommittee met at 1 o'clock p. m. in room 346, Old House Office Building, Hon. Louis E. Graham (chairman of the subcommittee) presiding.

Present: Hon. Louis E. Graham, Hon. Albert L. Reeves, Jr., Hon. Kenneth B. Keating, Hon. Sam Hobbs, Hon. Martin Gorski. Mr. GRAHAM. The subcommittee will be in order.

We have five witnesses to testify today: Capt. Schuyler Cumings, Mr. Walter E. Maloney, Mr. Hoyt Haddock, Capt. Donald Preble, Mr. Harry Hayden. It has been our custom, gentlemen, to take those witnesses from a distance first. Is there anyone from a distance who wishes to be heard first?

All right, if not, we will hear from Mr. Walter E. Maloney.

STATEMENT OF WALTER E. MALONEY, ATTORNEY, NATIONAL FEDERATION OF AMERICAN SHIPPING, INC., AND AMERICAN MERCHANT MARINE INSTITUTE, INC.

Mr. MALONEY. I am engaged in the practice of law as a member of the firm of Burns, Currie, Walker & Rich, 40 Wall Street, New York 5, N. Y. I represent the National Federation of American Shipping, Inc., of Washington, D. C., and the American Merchant Marine Institute, Inc., of New York City, both of which are trade associations. The members of these associations, on whose behalf I appear, are the owners and operators of the great majority of American flag oceangoing vessels. I appear in support of S. 1077 and urge your committee to recommend its passage.

I should say, on behalf of the shipping industry, we support S. 1077 and we ask your committee not only to recommend its passage but we you to do so as soon as possible in order to correct the situation which has become intolerable.

ask

For 9 months there has been no governmental agency to suspend or revoke the licenses or certifications of sea-going personnel. Our interest lies primarily in the fact that there is no other way by which sea-going personnel can be controlled insofar as ability and competence is concerned.

All licensed officers' or seamen's certificates are their badges of competence and ability. In other words, they certify to the fact that the man has met certain requirements in order to get that document and when he once gets the document, under the law, he must be accepted.

Mr. GRAHAM. We are familiar with that.

Mr. MALONEY. It must be accepted as prima facie evidence of his ability. It means there have been hundreds of offenses over the past 9 months. While ultimately, the proper authority will be able to catch up with these people and take action, for the present time they are on the sea. They are there with their negligence, their lack of ability and they are there to repeat the casualties which have occurred and they are a continuing menace to life and property at sea.

It is for that reason that we ask haste in the passage of this bill. In case of the master a license is issued only after he has satisfied the Coast Guard "that his capacity, experience, habits or life, and character are such as warrant the belief that he can safely be intrusted with the duties and responsibilities of the situation for which he makes application" (46 U. S. C. 226). In the case of an able seaman proof must be made showing the vessels on which he has had service and that he is skilled in the work usually performed by able seamen (46 U. S. C. 672). The law provides further that the seaman's certificate "shall be retained by him and be accepted as prima facie evidence of his rating as an able seaman."

My statement sets forth conditions under which licenses and certificates are granted and also the conditions under which they can be revoked or suspended. I will not go into that here. I would like to go into one or two points brought up last Wednesday in Captain Ash's statement, he compared the number of misconduct cases at sea to those on shore and said they were not out of line. We do not say they are. But our primary concern is that these men be taken out of work at sea with a document which says they are able when we think and a hearing would prove otherwise.

Secondly, a misunderstanding may have been created when Captain Ash says these men can get a job elsewhere even though there has been no hearing, and I think he referred to the bonding of these men. In the first place, bonds do not cover a man's ability. They cover his honesty and integrity. They are actually integrity bonds to insure the money intrusted to him. They have nothing to do with his ability. Many masters are not bonded. It is usual to bond the purser. The mates are not bonded and the sea-going personnel are not bonded. So, while these men have in their possession these certificates, they can go from one ship to another. Admittedly, the company that finds a man at fault will have a hearing, but the sea-going personnel go from company to company. This man is free to go elsewhere and that other company has no way of determining his fitness or competence so long as he has the necessary documents.

In my opinion, the law guarantees a fair trial to every officer and seaman brought up on hearing. I would just call your attention first to the statute which gives a man the right to his own counsel. That gives him the right to cross-examine witnesses and to call witnesses on his own behalf. That is carried out in the regulations which appear in the Federal Register which is published by the Coast Guard,

and I believe, in view of the testimony of the witnesses on the previous days of this hearing, it would be pertinent to read a short paragraph from these regulations. They appear in § 137.09-5

The person charged shall have the right to have counsel present at the hearing and shall be permitted to call, examine and cross-examine witnesses and to introduce relevant documentary evidence into the record. Should the person charged desire counsel and have no means of obtaining one, the examiner will secure an officer, if one is available, to act in his defense.

On the question whether these men received a fair hearing, there was criticism. We hear criticism from the industry as well. I have not put it into my statement. Statements were made last Wednesday but I think you will hear criticism of any person sitting in this capacity. You cannot satisfy both parties in a controverted issue. You will have dissatisfaction,

I think it would be quite apparent from Mr. Harolds' testimony last Wednesday, and he was equally critical of the Bureau of Marine Inspection and Navigation. It was a civilian agency. It was not directed solely at the Coast Guard. It certainly seems to me that everyone is prejudiced against seamen. They have more protection under the law than any other American working man and while Mr. Harolds seemed to admit that some Government agency was necessary, I would say he joined with the other Union witnesses, in feeling there should be no control outside the Union. We dispute that.

I think I can skip over considerable matter that appears in my statement as long as it is included in the record.

I would like to call your attention, however, to the fact that hearings conducted in marine casualties or cases of incompetence that come to the attention of the officer have three separate aspects.

In the first place, they are to determine how the casualty came about. In the second place, they are to find out if any individual is at fault. And in the third place, they are held for the purpose of having the hearing officer make recommendations to prevent similar accidents in the future.

In these investigations the hearing officer should never be limited to one phase of the casualty. You cannot separate failure of personnel from failure of equipment or material. Both could contribute and we feel that both aspects should always be together and never should the disciplinary phase be put into the hands of a civilian examiner and the equipment failure phase in the hands of a technical master. We think they should always be together so the whole picture can be presented in a hearing conducted by one officer and he should be a specially trained man.

Now, turning to the last point, I wish to mention that I have heard some comment on S. 1077 on the ground that it would be the first amendment to the Administrative Procedure Act and that it would set a dangerous precedent. Looking back at the Administrative Procedure Act, sir, it does not seem to me that that act was ever intended to supersede the hearings in Government agencies where Congress has specifically provided the qualifications of its hearing officers.

The Administrative Procedure Act provided that "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 specially appointed by or designated pursuant to statute.

74403-48-ser. 17-10

That means to me, where Congress has set up qualifications and certifications of men to conduct hearings that this specific section in the Administrative Procedure Act should not supersede it. If the specific reorganization plan had not taken us out of the hands of the marine boards we would have no questions today because these boards were set up by administration. It seems to me the argument is just as strong when turned over to an individual officer because he needs the same qualifications that the old three-man boards required. I do not think, in enacting S. 1077, you would in any way weaken the Administrative Procedure Act because you would already have the fact that Congress has already set up qualifications for these officers in the old boards, the Coast Guard officers who come closer to meeting these congressional standards than any others. I do not think you would be setting a precedent for another agency of Government because here a standard is provided.

There lies the real difficulty-a man in possession of a license or certificate must be presumed to be qualified for a job and only by suspending or revoking these papers can the careless or incompetent man be kept off the sea. As a result of these 9 months during which no documents could be suspended or revoked, there are literally hundreds of men at sea today who should not be there. You can well understand why we ask for haste in passage of S. 1077.

The Navigation Laws (46 U. S. C. 239) require the investigation of casualties "to determine whether any incompetency, misconduct, unskillfullness, or willful violation of law" caused or contributed to the cause of such casualty. If it is found that a licensed officer or holder of a seaman's certificate "is incompetent or has been guilty of misbehavior, negligence, or unskillfulness, or has endangered life, or has willfully violated" the law or the regulations issued thereunder, his license or certificate shall be suspended or revoked.

S. 1077 would renew the authority of the Coast Guard to designate officers to hear these cases. The Coast Guard conducted such hearings from 1942 until June 11, 1947, the effective date of the Administrative Procedure Act. In that period the Coast Guard handled them fairly and expeditiously.

The law guarantees a fair trial to every officer or seaman. Every man brought up for a hearing has the right to his own counsel; he has the right to cross-examine witnesses and to call witnesses on his own behalf. The proceedings are orderly and the man has every opportunity to clear himself. If not satisfied with the ruling of the hearing officer the man can appeal and cases on appeal are given a very careful review.

These hearings have three distinct purposes:

(1) To determine how the accident or casualty occurred.

(2) To find out if anyone was at fault.

(3) To make recommendations to prevent recurrence.

Coast Guard hearing officers have proven very capable of carrying out all three functions because they have had the training and experience necessary to pass judgment on the involved matters before them. They are able to determine whether a man's conduct and reactions were reasonable under the circumstances. A man who has had no experience as a navigator or as an engineer on board ship could not make such determinations. Instead, the untrained hearing officer would be forced