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S. 1077 as it passed the Senate will result in amending the Administrative Procedure Act, or interfering with the principle of that act, or otherwise derogating that act.
This bill, as it passed the Senate, contains language which I recommended, as an amendment to the language of the bill as introduced. Furthermore, the purpose of the amendment was to make sure that the Administrative Procedure Act would not be weakened in any way.
I am quite positive that the language of the proviso proposed by S. 1077 as an amendment to subsection (g) of section 4450 of the Revised Statutes is not in conflict in any way with the Administrative Procedure Act or with the principle of that act. On the contrary, the purpose of this language is to solve the practical problem confronting the Coast Guard and the Treasury Department, but to solve it within the framework of the Administrative Procedure Act rather than by amendment thereof or in conflict therewith.
Permit me to call your attention to the fact that (apparently as a result of a clerical or typographical error) the first few words of the bill, after the enacting clause, are not accurate. Instead of reading "that an act to amend section 4450" etc., the bill should read “that subsection (g) of section 4450” etc. I have taken the liberty of calling this matter to the attention of the chairman of the Senate Committee on the Judiciary; and if your committee should see fit to correct this minor error, I feel sure the Senate would concur in the amendment.
The purpose of the bill S. 1077 is, in my opinion, wholly praiseworthy, and I should like to express the hope that your committee may see fit to report the bill favorably at an early date. Kindest personal regards. Sincerely,
UNITED STATES Coast GUARD,
Washington 25, D. C., March 15, 1948. Miss VELMA SMEDLEY, Assistant Chief Clerk,
House Judiciary Committee. The following excerpt from a letter from the Commandant, United States Coast Guard, to Mr. Joseph Curran, president, National Maritime Union, dated September 5, 1946, I believe will answer the question asked by Congressman Keating at the hearing this morning :
"As an example, may I call your attention to the following figures published in the proceedings of the Merchant Marine Council, August 1946: Coast Guard Merchant Marine Hearing Units and Details investigated a total of 6,029 cases during the months of March, April, and May 1946. From this number hearings resulted involving 239 officers, and 1,115 unlicensed men. In the case of officers, 6 licenses were ordered revoked, 96 were suspended, 127 were suspended on probation, 18 were voluntarily surrendered, 11 were closed with admonitions, and 27 cases were dismissed. Of the unlicensed personnel, 44 were revoked, 448 were suspended, 577 were suspended on probation, 172 were voluntarily surrendered, 23 closed with admonition and 63 dismissed after hearing."
A. C. RICHMOND,
Chief, Planning and Control Staff. Captain RICHMOND. As I said, of the number of decisions 37 percent have been modified and 15 percent completely reversed.
Mr. KEATING. Was that 15 percent a part of the 37 percent?
Captain RICHMOND. Oh, yes. It is not a total of 52 percent. There was a distinction of two kinds.
Last week the case of the S. S. Henry Hadley was mentioned and now I would like to submit for the record the appellant's brief and the Commandant's action on appeal. I wish that you gentlemen individually had the opportunity of reading both documents. You would recognize immediately that it would be a physical impossibility for the Commandant of the Coast Guard to personally prepare each action on appeal. In fact, each case appealed to the Commandant is sub
jected to a careful legal review by the chief counsel, United States Coast Guard, who actually prepares the decision for the Commandant, after consultation with administrative officers on the clemency aspects involved. The chief counsel is a civilian under the immediate supervision and control of the General Counsel of the Treasury Department, who also is a civilian. Thus you see that this appeal procedure is not affected in any way by the bill before you.
Before once again stating the position of the Coast Guard with respect to this bill, I should like to restate for the record exactly what steps the Coast Guard has taken to obtain funds to employ civilian examiners should the use of officers be denied it. When the Bureau of Marine Inspection and Navigation was transferred to the Coast Guard in July 1946, approximately a month after the passage of the Administrative Procedures Act, it appeared that with the abolishment of the statutory boards and offices a question of authority had been raised. Accordingly, a decision was requested from the office of the Attorney General and when the service was advised that the terms of the Reorganization Act subjected us to the necessity of using civilian examiners an estimate for their hire was submitted to the Bureau of the Budget. After a number of consultations between various officials, this estimate was rejected and language exempting the Coast Guard from the necessity of employing civilian examiners was included in the request for appropriations for the fiscal year 1948. We appeared before the Appropriations Committee in February last year but they rejected the exemption, and directed that a bill be introduced to clear the matter. H. R. 2966 and S. 1077 resulted.
Hearings were held before this committee on H. R. 2966 on April 28, 1947. On June 6, 1947, a draft of a bill to extend our authority 9 months from June 11, 1947, was submitted to this committee. On June 9, 1947, this committee reported H. R. 2966 favorably to the full House Judiciary Committee. On June 17, 1947, the full House Judiciary Committee tabled the bill.
At this time we were preparing supplemental estimates for other matters and there was included in these estimates funds to cover the employment of civil examiners.
On July 14, 1947, the Senate Judiciary Committee reported S. 1077 favorably as amended, and on July 17, 1947, it passed the Senate. At the same time, or approximately at the same time, at the close of Congress when things were moving pretty rapidly, we appeared with respect to the supplemental request, and our request for civilian examiners was rejected with the language I quoted you the other day from the report of the House committee, a supplemental report.
In July 1947 we were preparing our estimates. And incidentally I want to make the point that the testimony at both these hearings is a matter of official record and if there is any doubt as to what the witnesses said, they can reassure themselves by the official record of these hearings.
Mr. GRAHAM. It is my understanding that this testimony will be printed so it can be available.
Captain RICHMOND. Yes. The reports of the Appropriations Committee are official documents, sir.
In July 1947 then, we were preparing our estimates for fiscal year 1949, and we included therein estimates for civilian examiners. This request in the 1949 appropriation request is there but our hearings are not scheduled until approximately May 1, and if appropriated the founds will not become available until July 1.
Finally, with respect to S. 1077, the Coast Guard feels that it is in the best interests of the Government if it is enacted. As has been stated, the Administrative Procedures Act was not intended to apply to the type of hearings held by the Coast Guard and the hearings would have been excluded had it not been for the wording of the Reorganization Plan No. 3 of July 1946, approved nearly a month after the passage of the Administrative Procedures Act. Further, we believe that the type of hearing involved requires a professional knowledge of the sea and its customs, which civil examiners will lack. Legal knowledge in itself is not sufficient.
Further, although there is a necessity of being prepared to administer the requirements of R. S. 4450 in a large number of ports, the work load in the majority of these will rarely justify the full-time engagement of civil examiners, and even where they are assigned they cannot be provided to accommodate peak loads. Officers, as distinguished from civil examiners, may be utilized in slack periods to perform a number of duties totally unrelated in any respect to the administration of the Administrative Procedures Act. In this fact lies the merit of S. 1077, since it provides a machinery for the fair, effective, and more economical administration of R. S. 4450, as evidenced by the records of hundreds of cases all of which are open to impartial inspection of this committee, should you care to view them, sir.
I have nothing further to add unless there are some questions.
Mr. GRAHAM. May I suggest to those who testified that this will probably be the last hearing on this matter. In that event, if there are any statements to be submitted, they should be placed in the hands of the reporter or the clerk of the committee so they can be made part of the permanent data.
Do any witnesses desire to be heard ?
Mr. MALONEY. Mr. Haddock has touched on the point of the degrees of disciplinary matters. I don't question that at all. I would accept that. We have fewer ships sailing and I think, as he says, many minor cases which the Coast Guard would pick up are just not handled today.
Furthermore, you have the situation where masters have given up hope of any action and these cases are not reported. The place to find the infractions is on the log books of the ships.
I had a most interesting letter to read to you but I will skip that. Mr. GRAHAM. Do you desire to put it in the record ?
Mr. MALONEY. No. It has not come to trial and there are individuals named in it.
I cannot let pass without comment on this America difficulty which was brought up, I believe, by Mr. Hayden, and commented on by Mr. Haddock. There is no question about it. The ship did sail and on schedule, so far as I know. Also, to the best of my knowledge, she took with her the man who made these statements on her arrival and he was acting as a delegate of the crew.
But that is not all there is to that case and I cannot let it pass. I am not disclosing any confidences. There is a fight going on in the National Maritime Union at this moment to try to weed out the large Communist element that has caused incidents of that sort.
I am sure Mr. Haddock would agree with me. It has been in the press. Joseph Curran, for whom I have great respect, has never
walked out on any kind of a contract with the contractors. He has done his utmost to meet his obligations but he is fighting the battle of his life to hold control of the union from this radical group who have taken over the majority of the minor offices. He has put out a public list of the officers he charges as Communists. I don't know the men involved. He says they are and says he is fighting against communistic control. That is the trouble right now when an element within the union can cause that trouble.
Mr. KEATING. Well, counselor, do you think it would be helping to uphold the hand of Mr. Curran—he is making this fight—if we were to act contrary to his wishes? If he is anxious to weed out the Communists and, as you say, he is sincere in that, why isn't it the very strongest thing we can do to assist him, not to turn this all over to the Coast Guard when he is so vigorously fighting against that?
Mr. MALONEY. Sir, I do not say that nothing should be done. I do not need to speak for the National Maritime Union. I am not asking you to do anything in an effort to strengthen Joseph Curran. I am not in that internal fight at all.
Mr. KEATING. You feel it represents the better element in the union?
Mr. MALONEY. We have made contacts in the court.
Mr. KEATING. You would not want us to strengthen the hands of the Communists?
Mr. MALONEY. We are against that, but we say, the fact that the lack of authority in any society to discipline people like that is a weakness. Where does the merchant marine have any standing with the public when a member of the crew can give a statement like that to the press and return to sea with the ship?
That ship has missed her sailing six times because of incidents like this. We have negotiated contracts with the National Maritime Union, with the officials, the elected officers, but they could not be sustained because the other side in the union on a vote was able to muster enough strength. We have been in a very difficult position in negotiations because of trouble making with the radical elements which Curran is trying to weed out.
But the continuance of incidents like the America is undermining discipline on the ship and the whole status of the merchant marine in the eyes of the owners and the public.
That ship sailed on schedule but that is merely one incident in a very bad situation which we ask you to correct as soon as can be done.
Mr. GRAHAM. It is understood that if anyone wishes to introduce a statement or letters, he may do so; but we will now declare this hearing closed.
(The following document was introduced by Captain Richmond :)
UNITED STATES Coast GUARD
WASHINGTON, D. C.
IN THE MATTER OF MERCHANT MARINERS, DOCUMENT No. Z112613-D1, ISSUED TO
JOHN W. PRESCOTT
DECISION AND FINAL ORDER OF THE COMMANDANT, UNITED STATES COAST GUARD
This case comes to me on appeal from an order entered by a United States Coast Guard examiner in Mobile, Ala., on February 5, 1947, suspending appellant's Merchant Mariners Document No. Z112613-D1 and all other valid documents
held by him for a period of 12 months upon finding him guilty of a charge of misconduct, based upon the following specifications:
1. In that he, while serving under authority of his duly issued certificate as chief electrician aboard the American MV Span Splice, did, on or about November 10, 1946, while said vessel was in a foreign part, commit assault and battery upon the person of F. E. Swain, chief officer of the American S. S. Alcoa Pilgrim, this offense occurring on board the latter vesse
2. In that he, while serving as above, did, on or about November 27, 1946, while said vessel was in a foreign port, make derogatory and threatening statements to the master.
3. In that he, having been duly ordered by proper authority to appear before the NMIU, Mobile, Ala., February 3, 1947, for hearing on a charge of misconduct, did fail to appear as directed.
The hearing was originally set for January 27, 1947, but was postponed until February 3, 1947, at appellant's request. Appellant failed to appear on Febru
On February 3, the hearing commenced in absentia, and the third specification, listed above, was added at that time. A United States Coast Guard officer was appointed to act as appellant's counsel and a plea of “not guilty” was entered to each specification. The investigating officer, over counsel's objections, was then allowed to introduce into evidence entries from the official log of the S. S. Span Splice, in which full details of the offenses charged were set forth. There was no indication that these entries had been made in accordance with the requirements of R. S. 4507 (46 U. S. C. 702), i. e., that the entries had been read to the appellant or that he had been afforded an opportunity to comment thereon; or that he was furnished a copy thereof. In support of the third specification, the investigating officer introduced a copy of the subpena directing appellant to appear on January 27, endorsed by proper authority to show the date had been extended to February 3 in accordance with appellant's telephonic request of January 20. On this evidence the examiner found all specifications proved and entered the aforementioned order.
On March 19, 1947, appellant appeared before the hearing unit in Mobile, stated that he had been unable to attend the hearing because of illness, and received a transcript of the record and a copy of the findings and order. Thereafter appellant contacted the Mobile unit on several occasions requesting information concerning his appeal which he stated was filed through his union. Through a misunderstanding, no appeal was made by the union. By the time this misunderstanding came to light, appellant's 30-day limitation period had expired. However, in view of the circumstances and the fact that appellant's counsel had announced an appeal would be taken at the conclusion of the hearing, appellant's appeal is now considered.
Appellant's chief points of appeal are (1) that there was no legal evidence to support the findings on the first two specifications, since the log entries had not been made in compliance with statutory requirements, and (2) that the addition of the third specification at the time of the hearing without notification to the appellant, was improper and constituted prejudicial error.
Upon due consideration of the afore stated facts of this case, and of appellant's appeal, I do now conclude that the findings on all specifications must be reversed. The log entries, introduced in support of the first two specifications, although properly admissible in evidence under the act of June 20, 1936 (28 U. S. C. 695), as entries made in the regular course of business, fail to establish a prima facie case in support of these specifications because of their lack of compliance with R. S. 4597 (46 U. S. C. 702). The courts have ruled that unless the requirements of this statute are complied with fully in regard to such log entries, a prima facie case for the purpose of forfeitures set forth for the various offenses in R. S. 4596 (46 U. S. C. 701) does not result. It logically follows that, to establish a prima facie case without further evidence for suspe on or revocation of mariner's documents under R. S. 4130 (46 U. S. C. 239) the character and efficacy of the entries in the official log should be no less.
The addition of the third specification without the appellant's knowledge while the proceedings were in progress was manifestly improper and constituted prejudicial error.
It is therefore
Ordered and directed that the order of the examiner dated February 5, 1947, be, and it is, vacated, set aside, and reversed. The charge is dismissed.
J. F. FARLEY,
Admiral, U. 8. Coast Guard, Commandant. Dated at Washington, D. C., this 11th day of December 1947.