Proceedings Of The Marine

SPR 2016

Proceedings magazine is a communication tool for the Coast Guard's Marine Safety & Security Council. Each quarterly magazine focuses on a specific theme of interest to the marine industry.

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54 Proceedings Spring 2016 www.uscg.mil/proceedings maintenance of order and good safety conditions aboard a vessel, governing the conduct of the crew, is precisely the kind of rule that does establish standards for the invocation of the 'misconduct' provision [for S&R proceedings]." 9 In addition to misconduct charges, possible S&R enforce- ment could also be triggered for negligence, as the SMS may establish a standard of care that a prudent mariner is expected to follow — a breach of which, even without a casualty, could result in allegations being issued. Getting It Right In summary, the SMS is a set of company policies and rules, and the policies are a good norm for judging misconduct. To trigger negligence for S&R action, the Coast Guard must only show that the mariner had a duty and that he or she breached the duty. 10 All this may cause some mariners angst. Safety manage- ment systems can be vast, with so many rules and proce- dures that it may seem impossible to remain compliant to all provisions. The thought of S&R action stemming from such a broad set of rules is daunting. The Coast Guard is limited, however; it can't tie just any SMS violation to a suspension and revocation action. Each situation is dependent upon the policy violated and whether it was directly related to safety aboard the ship in the par- ticular situation investigated. Additionally, the Coast Guard doesn't take its S&R responsibilities lightly — action upon the license could mean a potential loss of livelihood. To a mariner who depends upon supporting a career and earn- ing a paycheck while working at sea, losing a credential has a serious impact, even if only on hold for a short while. But, just as it's important that the Coast Guard gets these cases right, due to the impact on mariners' livelihoods, it's also important for the credentialed feet to know the bounds of the Coast Guard's authority. To steer clear of possible S&R enforcement, a credentialed mariner should do his or her part to ensure a safely functioning vessel by staying up- to-date on either the company's safety management sys- tem rules (if there is a formal SMS) or on the company's policies (if no formal SMS exists), especially as they pertain to safety aboard the ship. Violations of SMS rules and shipboard regulations can invoke jurisdiction over their Coast Guard- issued credential. About the author: CDR Christopher F. Coutu is the chief of the Suspension and Revocation National Center of Expertise. He is a 1993 graduate of the University of Rhode Island and a 2001 graduate of Suffolk University Law School. He has served for 14 years in the Coast Guard in legal and prevention positions. Bibliography: Statistics courtesy of the U.S. Coast Guard Suspension and Revocation National Center of Expertise. Endnotes: 1. See generally 46 U.S.C. Subtitle II, Part E. 2. U.S. Steamboat Inspection Service & the History of Merchant Vessel Inspection. See www.uscg.mil/history/articles/Steamboat_Inspection_Service.asp. 3. 16 Stat. 447 (1871). See also "Improving Competence in the Merchant Marine: Sus- pension and Revocation Proceedings," Eugene R. Fidell, Missouri Law Review, Vol. 45, Winter 1980 referencing H. Bloomfeld, Compact History of the United States Coast Guard 263–65 (1966). 4. 5 U.S.C. §§ 551-557. See also 46 U.S.C. § 7702(a). 5. See 46 U.S.C. § 7701. 6. For a more detailed article on this subject, please see "Mariners Can Lose Creden- tials for What?," Proceedings, Winter 2015-16, p. 53-56, at http://uscgproceedings. epubxp.com/t/11313-proceedings-of-the-marine/55. 7. Appeal Decision 1567 (CASTRO) (1966). 8. See Appeal Decision 2539 (HARRISON) citing Commandant v. Wardell, NTSB Order EM-149. 9. Appeal Decision 1567 (CASTRO) (1966). 10. See Appeal Decision 2539 (HARRISON) citing Commandant v. Wardell, NTSB Order EM-149.

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