Proceedings Of The Marine

WIN 2015

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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Page 57 of 70

55 Winter 2015–2016 Proceedings 5 percent of flings in 2014. 9 Sanctions for this category nor- mally range from one to three months of suspension. Misconduct and Negligence: S&R action is applicable if the mariner, when acting under the authority of the credential, commits an act of misconduct or negligence. Misconduct is defned as "human behavior which violates some formal, duly established rule. Such rules are found in, among other places, statutes, regulations, the common law, the general maritime law, a ship's regulation or order, or shipping articles and similar sources. It is an act which is forbidden or an omission to do that which is required." 10 With its broad definition, misconduct can incorporate offenses that ft into other categories, including negligence, but all the offenses mentioned are similar in that "acting under the authority" of the credential is required for S&R jurisdiction. About 25 percent of complaint flings in 2014 were classifed as misconduct. 11 The regulations at 46 CFR §5.29 defne negligence as "the commission of an act which a reasonable and prudent person of the same station, under the same circumstances, would not commit, or the failure to perform an act which a reason- able and prudent person of the same station, under the same circumstances, would not fail to perform." The frst part describes someone committing an act that another would not (for example, a pilot improperly navigating a commer- cial vessel). A reasonable and prudent pilot would properly navigate the vessel. From the second part of the defnition, the Coast Guard would seek to charge a mariner's failure to perform an act (such as a pilot failing to sound fog signals while in or near fog) where a reasonable and prudent pilot would sound signals appropriately. Unlike the civil law requirement for negligence, which necessitates damage resulting from a breach of a duty, in the suspension and revocation context, a casualty resulting from the negligent act or omission is not required for the Coast Guard to take action. Remember, the purpose of these proceedings is to prevent casualties. Any damage resulting from the negligence would be identifed as an aggravating circumstance on the complaint. Drug Use: The greatest number of offenses cited in S&R complaint filings have been for illegal drug use. Out of 480 complaint flings in 2014, 264 involved mariners test- ing positive for use of dangerous drugs. 12 Based on federal workplace rules, the Coast Guard limits collection of speci- mens for drug testing to urine. However, marine employers are increasingly expanding into other scientifcally recog- nized methods such as hair tests, and also incorporate a wider range of drugs in their selection. The Coast Guard lauds this proactive approach, and has embraced any extra workload from the voluntary reporting of these drug tests as a means to ensure a safer maritime transportation system. Contemplating Sanctions There are a number of sanctions (orders) the administrative law judge (ALJ) may issue at the conclusion of an adversarial suspension and revocation proceeding. From the lowest to highest impact level to the credential, an ALJ may order: • Dismissal (case not proved): nothing happens that affects the merchant mariner credential. • Admonition (case proved): the administrative law judge issues a formal warning against the MMC. The mariner retains merchant mariner credential possession and is able to continue sailing. • Suspension on probation (case proved): the ALJ issues a suspension, but the suspension is placed on probation. The mariner retains MMC possession and may continue sailing. • Outright suspension (case proved): the administrative law judge issues a period of suspension, and the mer- chant mariner credential is turned over to the Coast Cured From Drugs? The suspension and revocation statute mandates that if a mariner uses or is addicted to a dangerous drug, the mariner's credential will be revoked unless the mariner provides satisfactory proof of "cure." 1 The History The required drug testing regulations in 46 CFR Part 16 have been around since the late 1980s, and no other ofense category has generated as many interpretations in the process for all involved. Defned individual roles, questions of exactitude in following regulatory intent, and equitable treatment of mariners have served to create continuing confusion. The Cure To address these issues, the Coast Guard established a stan- dard "proof of cure" process for mariners through a series of Commandant decisions. 2 The terms in the decisions are now embedded within the standard drug use settlement agreement. The typical cure process takes 16 months or more to complete, but — considering that revocation is the only other allowable sanction when drug use is proven at a hearing — the cure process is a good option for mariners. Endnotes: 1. 46 U.S.C. 7704(c). 2. See CDOA 2535 (SWEENEY), CDOA 2634 (BARRETTA), and CDOA 2638 (PASQUARELLA).

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