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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53 Spring 2016 Proceedings accomplish this mission through its suspension and revoca- tion program. S&R Triggers that Relate to SMS Without belaboring all the permutations of offenses and mariner infractions that might trigger a suspension and revocation action, 6 the most notable of all violations is drug use. Approximately 70 percent of the 500 complaints fled each year against mariners involve some variation of drug offense. The rest of the complaints are largely composed of allegations of misconduct or negligence. Misconduct: This is mariner behavior that violates an estab- lished rule, such as those found in statutes, regulations, the common law, the general maritime law, a ship's regulation or order, or shipping articles. In addition, the Coast Guard has long held that company policy with regard to crew con- duct relative to safety matters aboard the ship is a good norm for judging misconduct; they have successfully pros- ecuted numerous complaints against mariners for violating their company's policy. 7 Negligence: In civil law, prosecutors must prove several elements of negligence to fnd liability: that a duty exists, the duty was breached, and the breach was the cause of resulting damages. However, to trigger Coast Guard S&R action, the Coast Guard must only show that the mariner had a duty and that he or she breached the duty. 8 The lack of a damage element makes good sense in the world of S&R actions, as the Coast Guard seeks to prevent accidents and improve mariner conduct to support marine safety. Safety Management Systems as a Basis for License Action Safety management systems fit into the S&R construct because they were developed for the very reason suspension and revocation actions exist — to promote safe ship opera- tion. Some shipping companies are required to produce a safety management system by way of the International Con- vention for the Safety of Life at Sea (SOLAS) and U.S. imple- menting regulations. Others produce safety management systems because they seek to standardize safe shipboard operations and establish a standard of care for their vessels. Suspension and revocation action is applicable whether a safety management system is required or not, depending on the policy or procedure violated. When a ship adopts poli- cies and procedures relating to vessel safety, they, in turn, establish shipboard regulations and create the company policy against which a mariner's actions may be compared. According to a Commandant Decision on Appeal, company rules are standards upon which to measure mariner con- duct. The Commandant has held: "A company's policy for destroyed by explosion, with a loss of life exceeding 1,000. Then, between 1847 and 1852, a series of disasters primarily caused by boiler explosions occurred, in addition to others caused by fres and collisions. 2 In response, Congress passed the Steamboat Act of 1852, which allowed federal action on mariners and made own- ers and masters liable for damages resulting from failure to employ properly trained engineers. Under this law, the orga- nization and form of a federal maritime inspection service began to emerge, as it empowered inspectors to grant and revoke pilots' and engineers' licenses. This early system was supplanted and made more robust by the Act of 1871, 3 which formed the Steamboat Inspection Service. This act provided for licensing for masters and chief mates. It also made S&R actions into a more formal process, requiring written notice and hearings. The Coast Guard's current licensing enforcement structure is founded upon this rich history. S&R Structure The Coast Guard's National Maritime Center (known as "the NMC") issues credentials to merchant mariners. Coast Guard offcers in charge of marine inspection (OCMIs) in each port have the authority to issue complaints against those credentials for various violations; however, they do not have the authority to suspend or revoke a creden- tial. That burden rests with the Coast Guard's cadre of six administrative law judges, who are charged with this duty under the grounds set out in 46 U.S.C. §§7703 and 7704. S&R proceedings are conducted under the Administrative Proce- dure Act, 4 which ensures that mariners' due process rights are safeguarded. Mariners may appeal administrative law judge decisions to the Commandant. They may also appeal directly to fed- eral district court if, for example, the judge orders some- thing other than suspension or revocation. If a mariner is unhappy with the outcome of an appeal to the Comman- dant, he or she may appeal that decision to the National Transportation Safety Board, and then to the United States Court of Appeals, if still unsatisfed. On average, 500 complaints a year are fled against mariners. Suspension and revocation regulations are constructed to obtain a just, speedy, and economical determination of the issues presented. Additionally, the administrative action against a merchant mariner's credential is remedial and not penal in nature. In keeping with its historical roots, the Coast Guard's actions are intended to help maintain stan- dards for competence and conduct essential to safety at sea. In short, Congress demands a safer maritime community by way of action on licenses, 5 and the Coast Guard seeks to

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