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Appendix F Vessel Manning: New Applications for Old Statutes Alex Blanton The power to prescribe minimum manning levels for merchant vessels Is vested in the Coast Guard, which, within the confines of watchstanding, work-hour and work-assignment restrictions imposed by statute, has broad discretion to adjust the manning level according to a vessel's nature, ser- vice, and equipment.) This paper will first review the statutory language, legislative history, and administrative interpretations and judicial construc- tion of the statutes that c~rcumscnbe the Coast Guard's discretion, and will then explore how those statutory standards can best be applied to establish reasonable minimum manning levels for modern merchant vessels. I. Background The minimum crew "necessary for safe operation" of a vessel is pre- scribed by the Coast Guard on the vessel's certificate of inspection (COI). 46 The author, a retired Coast Guard officer, is a partner in the Washington, D.C. law firm of Dyer, Ellis, Joseph & Mills. This paper is based in part on an article by the late Clinton J. Maguire, "Laws and Rules of the United States Concerning Vessel Manning," which appeared as an appendix to the 1984 Marine Board Study, Effective Manning of the U.S. Merchant Fleet. 1 Part F of subtitle II of title 46, United States Code (46 U.S.C. 8101-9308), entitled "Man- ning of Vessels" and composed of Chapters 81, 83, 85, 87, 89, 91 and 93, provides Congress's mandate with respect to merchant vessel manning. The Coast Guard regulations that interpret and implement these vessel manning statutes are codified in 46 C.F.R. part 15. The Coast Guard provides administrative guidance to its field personnel in the form of the Marine SafeW Manual (MSM) and Navigation and Vessel Inspection Circulars (NVICs). Most of the relevant portions of these authorities are reproduced in the attachments. 132

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VESSEL MANNING: NEW APPL CATIONS FOR OLD STATUTES 133 U.S.C. 8101(a). Traditionally, the standard crew for an oceangoing vessel has been 26 persons: a licensed master, three mates, three or four licensed engineers, enough sailors to have three per watch, and enough unlicensed engine-room personnel on a steam vessel to have three per watch.2 The statutes that led the Coast Guard to adopt this traditional manning level fall into three categories: watch-standing requirements, work-assignment restrictions and work-hour limitations.3 Each category is examined in turn. ~ Watch-standing Requirements The traditional practice of operating vessels through the use of a watch system has been mandated by statute since 1915.4 The current watch- standing statute, 46 U.S.C. 8104(d), provides: On a merchant vessel of more than 100 gross tons . . . the licensed individuals, sailors, coal passers, firemen, oilers, and water tenders shall be divided, when at sea, into at least 3 watches, and shall be kept on duty successively to perform ordinary work incident to the operation and management of the vessel. This statute has a significant effect on crew size, because at least three persons must be assigned to any position filled by one of the watch- standing categories. The first two categories of seamen addressed by the statute require some clarification.5 The first category, licensed individuals, contains a significant assump- tion. When this category of seamen was added to the statute in 1938, there were the following classes of licenses: (1) master; (2) chief mate; (3) second and third mate (if in charge of watch); (4) engineer; and (5) pilot. (See former 46 U.S.C. 228).6 2"Master" is defined in 46 U.S.C. 10101 as the person in command of a vessel, and "seaman" as a person employed in any capacity aboard a vessel. The definitions in that section, which is in Part G of the Code (Merchant Seamen Protection and Relief), are not directly applicable to Part F (Manning of Vessels), but they are consistent with common usage in the context of vessel manning and will be used in this paper. The term "seaman" should not be confused with "sailor," a term reserved for seamen with deck department duties. sin addition to the statutes discussed below which affect manning levels, 46 U.S.C. 8301(a) explicitly states in terms and numbers that a vessel must carry certain people. In general, for oceangoing merchant vessels, it requires one licensed master, three licensed mates, and a li- censed engineer. Additionally, under Chapter 4 of the International Convention for the Safety of Life at Sea, 1974, a radio officer is required on most vessels. 4Watch-standing, when first statutorily mandated in 1915, imposed a two-watch system forsailors and a three-watch system for engineers. The statute was amended in 1936 to cover licensed officers, convert sailors to the three-watch system, and add coal passers. 5The remaining persons designated fordivision into watches are all unlicensed engineers. Unlike licensed individuals and sailor, they are designated with precision; unlicensed persons engaged for engine duties other than coal passer, fireman, oiler, or water tender, are not covered by the statute. 6 Specific statutes went on to deal with (1) Master of steam or sail (former 46 U.S.C. 226), (2)

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134 APPENDIX F Although the present watch-standing provision purports to require all three general categories of licensed officers (i.e., masters, mates, and engineers) to be divided into three watches, it seems certain that the law did not contemplate forcing the master to stand a watch. The statutory requirement for three mates on the great majority of vessels (46 U.S.C. 8301(a)~2~) reinforces this assumption.7 Given the acknowledged status of a master, when Congress in 1936 declared that '`the licensed officers . . . shall . . . be divided into at least 3 watches," it must be seen as having incorporated the unstated qualification of officers whose duties are normally accomplished on a watch.8 And, in general, Congress must have appreciated that the duties of some seamen traditionally involve watch-standing while those of others, especially food handlers and many supernumeraries (e.g., musicians, bartenders, librarians, and supercargoes), do not. The second category of watch-standers, sailors, is not defined in the statute. The Coast Guard, however, in its regulations defines "sailors" as "those members of the deck department other than licensed officers, whose duties involve the mechanics of conducting the ship on its voyage, such as helmsman (wheelsman), lookout, etc., and which are necessary to the maintenance of a continuous watch" 46 C.F.R. 15.705(b) (emphasis added). Thus seamen who are not members of the deck department or whose duties do not involve conducting the ship on its voyage are not sailors, and, if not included in one of the other categories, need not be assigned to a watch. Application of the watch-standing statute has been complicated some- what by inconsistent judicial interpretations. In 1926, when the Supreme Court decided O'Hara v. Luckenbach S.S. Company, 269 U.S. 364 (1926) reversing 1 F.2d 923 (9th Cir. 1924), the law required sailors to be divided into two watches, but the vessel at issue was using three watches, neat just the two required. There were 13 deck seamen on boartl, three off whom Chief mate, ocean or coastwise, steam or sail, and second and third mate, ocean or coastwise steam (former 46 U.S.C. 228), and (3) Engineer of any steam vessel (former 46 U.S.C. 229~. Radio operators were not officers and "registered staff officers" were not recognized by statute. 70f lesser importance, but of some value as a precedent, is the fact that the larger passenger vessels generally carried a second licensed masterwho was denominated "staff captain" or some- thing similar. This officerwas not required or expected to stand a watch simply because his duties lay elsewhere in the management of the ship. Carom a converse situation, the real world produces another confirming instance. Although engineers are not divided into classes by statute, as deck officers (including the master as deck officer) are, the Coast Guard has created four grades of license: chief, first assistant, second assistant, and third assistant. When a vessel is required to have four licensed engineers by its certificate of inspection, the chief engineer need not, and in fact does not, stand a watch.

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTES 135 were designated as quartermasters.9 Each watch included a quartermaster and one able seaman. The remaining seven deck seamen were used for day work only. While the lower courts had been satisfied that the watch requirements of the law were met if qualified personnel were selected for quartermaster and lookout duties, the Supreme Court saw the issue as a matter of "equality" of the watches alone. It decreed that the 13 deck seamen had to be divided into equal watches, presumably 4, 4, 5.10 By quoting an earlier court of appeals decision, the Supreme Court silently construed the then extant statutory phrase, "ordinary work incident to the sailing and management of the vessel," as including capability in each watch to meet "all the exigencies of the intended route" and "any exigency that is likely to happen." The Court cited allegations that several marine disasters had been worsened by a shortage of able seamen or by incompetency of lifeboat handlers. Almost immediately after this decision, and under the same law, came a district court decision, El Estero, 14 F.2d 349 (S.D. Tex. 1926), aff'd sub nom. Southern Pacific Co. v. Hair, 24 F.2d 94 (Sth Cir. 1928~. Here, the vessel's COI prescribed four able seamen and two seamen. In addition to the required crew, the ship was carrying other seamen for ship maintenance who were not assigned to watches. The court saw the respondent's position thus: "If the ship can satisfy the local inspectors as to her navigation requirements, she may employ as many additional seamen as she wants, without any of them having the protection of that part of the act providing for their division into watches." Despite the Supreme Court's heavy emphasis on the safety purposes of the statute, the district court saw it as a "protection" to the seamen and directed that all be assigned to watches. More importantly, both the district court and the Fifth Circuit specifically rejected the defendant's argument that the additional seamen were not sailors. The American Shipper (McCrea v. United States), 3 F. Supp. 184 (S.D;N.Y. 1932, modified on rehearing, 1933), add sub nom. The American Shipper, 70 F.2d 632 2d Cir. 1934~; add sub nom. McCrea v. United States, 294 U.S. 23 (1935), still in the era of the two-watch provision for sailors, supplies some curiosities. The court stated the facts as follows: [lithe thirteen seamen on the vessel were not as equally divided into watches as that number pe~lllitted. Instead, three seamen were placed on each of three watches, and four men were used for day duty and were not on any watch. 9 Both the Supreme Court and the Court of Appeals referred to the deck seamen as sailors. 269 U.S. at 366; 1 F.2d at 923. Apparently the defendant did not argue, and the courts certainly did not consider, the proposition that the statutory term "sailom" does not automatically include all deck seamen. 10 Under the principle announced By the Court, the division would have been six-seven had the master chosen to comply only with the two-watch requirement. Indeed, he could have chosen a six-watch system with quartermaster and lookout on each.

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136 APPENDIX F It further appears that three oilers were not placed on any watch, but were assigned to day duty. The firemen and water tenders, however, appear to have been equally divided into three watches. 3 F. Supp. at 185. After stating that O'Hara v. Luckenbach required all the sailors of a vessel to be divided into watches as nearly equal to each other as the whole number of sailors will permit, the court concluded, citing the El Estero case, that "the additional men should also have been divided into watches." 3 F. Supp. at 185.~2 In a recent watch-standing case, llismct 2, Marine Engineers Ben ef: Ass 'n v. Adams, 447 F. Supp. 72, 75 (N.D. Ohio 1977), the union asked the court to compel both the vessel's owner and the Coast Guard to enforce the three- watch law with respect to the licensed engineers.l3 The court, stating that the "shall enforce" language in the predecessor to 46 U.S.C. 2103 created a clear, ministerial, and nondiscretionary duty, issued a preliminary injunction requiring the Coast Guard to assess the statutory penalty for violating the three-watch statute. The court concluded that "there exists no authority whatsoever for nullifying the three-watch requirement of [section 8104(d)~." 447 F. Supp. at 81 (emphasis deleted). "While Congress presumably could have left to the Coast Guard the decision as to the system of watches required for the safety of each individual vessel and its crew, it chose instead to prescribe a uniform three-watch requirement for all vessels." Id. at 80.14 The decisions in all of the foregoing cases share a common defect. The courts apparently did not consider the possibility that the law attached only to seamen whose work was normally performed on a watch-standing basis. Moreover, no thought was given to the basic reality that it is the master who is ultimately responsible for setting watches and not the Coast Guard, which Is authorized only to set the complement required. 1 1Apparently, since more than 13 seamen are enumerated, the court should have used the term "sailors" instead of "seamen." 12Even though the petitioner was a fireman, and the firemen were divided into equal watches, the court allowed him the statutory remedy. The statute then provided: "whenever the master of any vessel shall fail to comply with this section . . . the seamen shall be entitled to discharge from such vessel." The petitioner was a "seamen" entitled to the remedy. Thus the mates, the licensed engineers, and the cooks are all entitled to discharge if there is a breach. i3The COIs at issue required three licensed engineem, one chief and two unclassified assistants, who, apparently with Coast Guard approval, were not assigned to watches. The vessels were equipped with full pilot-house control of the engines, and the engine room was unattended. The three licensed engineer were the only personnel in the engine department. 14The value of this case as precedent is questionable. After the preliminary injunction was is- sued, the dispute was settled and the union dismissed its complaint. Reportedly the union agreed that the licensed engineers would not be required to stand watches in return for a promise by the shipowner not to reduce their number below three.

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BESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTES 137 In contrast to the foregoing cases, The Chilbar, 10 F. Supp. 926 (E.D. Pa. 1935) and The Youngstown, 110 F.2d 968 (Sth Cir. 1940), cert. denied, 311 U.S. 690 (1940), present a more functional view of the watch-standing provisions. The Chilbar case held that "repairmen" hired and described as part of a "maintenance department" (a term not found in law or regulation) need not be divided into watches. In The Youngstown, the court held that a wiper and a boatswain, two positions not mentioned in the statute, were not required to stand watches. "The statute does not require any watches at all for the boatswain and the wiper, and no duty can be violated where none is owed." 110 F.2d at 969.~5 The conflict between these cases and those discussed above is obvious, but no court has ever mentioned it, and some courts cite cases from both groups as if in harmony. B. Work Assignment Restrwi'ons. Section 8104(e)~1) of Title 46, U.S.C., provides that a seaman may not be (A) engaged to work alternately in the deck and engine departments; or (B) required to work in the engine department if engaged for deck department duty or required to work in the deck department if engaged for engine department duty. Both the Coast Guard and the courts have given this provision a straightforward interpretation. Smith v. Reinauer Oil Pansy., 256 F.2d 646, 652 (1st Cir.) (engine room crewmember is permitted, but cannot be required, to work in deck department), cent denied, 358 U.S. 889 (1958~; Kane v. Arnencan Tankers Corp., 219 F.2d 637, 639 (2d Cir. 1955~. The Work-hour Limitation. Under 46 U.S.C. 8104(d), a "licensed individual or seaman in the deck or engine department may not be required to work more than 8 hours in one day." See also 46 C.F.R. 15.710. A crew member may volunteer for overtime under circumstances lacking "direct or indirect coercion." 3 MSM 22.C.~6 If, in a collective bargaining agreement or other i5Ci Western Pioneer, Inc. ~ United States Coast Guard, 709 F.2d 1331, 1336 (9th Cir. 1983) (the Coast Guard's strict interpretation of section 8104(d) is entitled to deference). In The Youngstown case, the court also addressed the position of an oiler performing the duties of deck engineer, a rating classified as "a qualified member of the engine department" and not enumer- ated in the three-watch provision. Although the other oilers on board stood watches, the one acting as deck engineer was held not to be subject to the provision on watch division. Appar- ently, the vessel did not carry a "regular" deck engineer. The seaman in question was apparently signed on precisely as an oiler, and the court, despite that designation, looked at the kind of work he did to determine whether he was subject to the three-watch law. 16 Note, however, that MSM 22.C instructs the cognizant Coast Guard officers to study carefully any pattern of overtime that might indicate that the vessel is undermanned, with a view toward amending the vessel's COI to require additional crew members.

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138 APPENDIX F contract of employment, the crewman (or the union on his behalf) agrees to specific overtime standards, work performed within those standards would be deemed voluntary. The Youngstown, 110 F.2d at 970. The owner or master may require a seaman to agree to work a certain amount of overtime as a condition of a seaman's employment. Even then, however, the seaman may unilaterally refuse to work overtime. If that happens, the owner/master may not force the seaman to work overtime during the current period of employment but may refuse to rehire the seaman. See paragraph 9 of the attached October 14, 1988 letter from the Chief of the Coast Guard's Merchant Vessel Personnel Division. Watch duty is considered as time "on duty" included in the eight-hour limit, but in-port night watch-standers are presumed to have voluntarily assumed the additional duty. 3 MSM 22.D.~7 Although watch duty is included in the calculation of the eight-hour day, a seaman may be required to perform routine maintenance duties while on watch. "The performance of such regular and customary duties, even though of a nature to require the breaking of a watch, was not violative of the statute." The Youngstown, 110 F.2d at 969; see also Southern Pacific Co., 24 F.2d at 95 ("where is no requirement that all sailors while on watch be engaged exclusively in twatch-standing-type] work, and that none of them, when his services are not needed for the proper performance of that work, may not be assigned to such work as cleaning, painting, etc."~. II. Recent Developments: Maintenancepersons and Maintenance Depart- ments. Despite the overly restrictive interpretation that courts have tended to give the watch-standing provisions, the existing regime provides some flex- ibility for adapting manning levels to evolving technological and economic realities. The Coast Guard's manning regulations and other guidelines clearly embrace the concept of a shipboard organization in which not all personnel listed on the COI are required to stand watches. According to 46 C.F.R. 15.705: The Coast Guard interprets the term 'watch' to be the direct performance of vessel operations, whether deck or engine, where such operations would routinely be controlled and performed in a scheduled and fixed rotation. The performance of maintenance or work necessary to the vessel's safe operation on a daily basis does not in itself constitute the establishment of a watch. The minimal safe manning levels specified in a vessel's certificate of inspection take into consideration routine maintenance requirements and ability of the crew 1 7But note 46 U.S.C. 8104(a), under which an officer may "take charge of the deck watch on a vessel when leaving or immediately after leaving port only if the officer has been off duty for at least 6 hours within the 12 hours immediately before the time of leaving."

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VESSEL MANNING: NEW APPLICAT ONS FOR OLD STATUTES to perform all operational evolutions, including emergencies, as well as those functions which may be assigned to persons in watches. 139 The above language, considered in light of the Chilbar and Youngstown cases discussed above, provides a strong basis for the exemption of main- tenance personnel from watch requirements, especially if they are assigned to a separate maintenance department. The key to section 15.705 is its explanation that some of the personnel specified by the COI are needed to perform routine maintenance, while other personnel are needed to perform vessel operations. Personnel performing routine maintenance are not sub- ject to watch-standing requirements, whereas personnel performing vessel operations are. See also 3 MSM 22.E. In short, not every individual spec- ified by the COI must be assigned to a watch. This is not a new position for the Coast Guard. The previous version of the manning regulations (former 46 C.F.R. ~ 157.20-5(a)) provided, "The requirement for division into watches applies only to those classes of the crew specifically named in [section 8104(d)~." In a letter to all field Merchant Marine Safebr Offices (attached), the Chief of the Coast Guard's Merchant Vessel Personnel Division further supports this interpretation of the statute and regulations. The letter reiterates guidance in the MSM (3 MSM 22.B) that all personnel in the unlicensed ratings of able seaman, ordinary seaman, fireman-watertender, and oiler, when required by a vessel's COI, are considered watch-standing categories for purposes of 46 U.S.C. 8104 and must be divided into successive watches and employed for the performance of ordinary work incident to the operation of the vessel. The letter goes on, however, to recognize: During the past decade, various labor saving devices and operational innovations have enabled navigational watches to be safely and effectively performed with _ O fewer inAivirl'tnl~ The rer~entiv n''hli~hed rrevi.c~edl manning regulations recognize that the individual in command of a vessel has knowledge of all of the circumstances necessary to make a decision on the proper composition and conduct of the navigational and machinery space watches. Therefore 46 C.F.R. 15.705(b) specifies that a vessel's master is responsible for the establishment of adequate watches. In an enclosure entitled "Maintenancepersons," the letter provides extensive guidance on the establishment of a maintenance department aboard vessels: iS]ome of the individuals in a vessel's Coast Guard mandated crew complement may be engaged as maintenancepersons and assigned to a maintenance depart- ment. If properly qualified, these maintenancepemons can be used by the vessel's master to augment navigational or machinery space watches should circumstances such as weather, mechanical failure, etc., require watch augmentation. During periods in which these maintenaneepersons are used to augment navigational or machinery space watches, they become part of the watch and are subject to requirements such as the three watch requirement of 46 CF~ 15.705.

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140 APPENDIX F Once a maintenance department is established, all personnel not re- quired by the vessel's COI can be engaged as maintenancepersons, assigned to the maintenance department, and relieved from watch duty. Engine maintenancepersons required by the COI can be assigned to the mainte- nance department and relieved from watch duty. With approval of the Coast Guard, three of the six ABs normally required by the COI can be converted to maintenancepersons, assigned to the maintenance department and relieved from watch duW. Even without amending a vessel's COI to include a maintenance de- partment, it should be possible to designate crew members not required by the COI as maintenancepersons and exempt them, along with crew mem- bers identified as maintenancepersons on the COI, from watch duty. If a separate maintenance department is not established, however, such mainte- nancepersons would necessarily retain their affiliation with either the deck or engine department, and the work assignment restrictions caused by such affiliation, discussed above, would continue to apply. Once a maintenance department has been established, the law leaves ample room for flexibility in making work assignments for its members. Under 3 MSM 21.C, "maintenancepersons may be identified by depart- mental affiliation (deck maintenanceperson, engine maintenancepersons or by no affiliation, in which case the master has the discretion to determine how to best utilize the person." Based on this language, the shipowner can retain flexibility by making clear that maintenancepersons are not affiliated with either the engine department or the deck department and that they are thus free to alternate between engine and deck duties. Literally, the eight-hour limitation in 46 U.S.C. 81()4(d) fixes nest apply to persons (licensed or unlicensed) assigned to a maintenance (Je- partment, and would not affect the ability to require maintenancepersons to work overtime. Unlike the situation with regard to watch-standing and work-assignment restrictions, however, the Coast Guard's regulations and administrative guidance do not support such a literal interpretation regard- ing the work-hour restriction. See, e.g., 3 MSM 22.C ("Seamen [without limitation] may not be required to work more than 8 hours ...."~; 46 C.F.R. 15.710 (citing the statute as "setitingi limitations on the working hours of . . . crew members"~. Nonetheless, since the statutory work-hour restriction contains the same restrictive language ("in the deck or engine department") as the other restrictions, it is possible to extrapolate the same 18The regulations do not explicitly support this rationale for excluding engine maintenanceper- sons from watchstanding, but it is a logical extension of the rationale used with regard to deck personnel. Without further approval from Coast Guard Headquarters, Qualified Members of the Engine Department (QMEDs) required by the vessel's COI cannot be assigned to the main- tenance department. Compare 3 MSM 21.B, authorizing the substitution of "junior engineers, deck engine mechanics, or enginemen" for oilers, but requiring such substitutes to stand watches.

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTES 141 result, namely, that the work-hour restriction does not apply to members of the maintenance department. Although clearly supportable from a legal (and perhaps, logical) point of view, any attempt to use this rationale for purposes beyond those to which the Coast Guard has been willing to apply it clearly puts the entire maintenance department concept at risible First, in any court challenge, the position of a regulated party is not accorded the presumption of regularity accorded to the position of a regulatory agency. Second, such an attempt to extend the rationale would undoubtedly cause pressure on the Coast Guard to retrench from other positions based on that rationale. Thus the shipowner should carefully weigh the advantage to be gained from a conclusion that the eight-hour workday limitation does not apply to members of the maintenance department (i.e., the ability to require those crewmembers to work overtime) against the risk that asserting that position would endanger the entire maintenance department concept. If a maintenance department is established, its actual administration must be consistent with the premise on which it is based that the ship can be properly maintained and operated by fewer personnel if some of the assigned seamen are dedicated to daywork maintenance. Two prac- tices, in particular, would cast doubt on the validity of that premise. First, frequent use of maintenance department personnel to perform nonmain- tenance duties concerning ship operations would indicate that there are not enough seamen assigned to watches. Second, requiring maintenance department personnel routinely to work overtime would indicate that the manning level regardless of departmental organization is insufficient for performing routine maintenance. And, of course, combining these two practices frequent assignment to nonmaintenance duties of a maintenan- ceperson who is routinely required to work overtime would be altogether inconsistent with the statutory work-hour restrictions. Cp MSM 22.C; 23.~5. III. Continuing Problems. The current statutory and regulatory regime for vessel manning suffers from several deficiencies that cannot be overcome by administrative inno- vations. They are at once both too broad and too rigid. The manning code, despite the 1983 recodification, is mostly a conglomeration of disjointed legislative responses to spasmatic maritime disturbances throughout this century. It provides no overall objective that the Coast Guard is expected i9The primary basis for the eight-hour restriction appears to be the avoidance of fatigue among personnel involved with navigating the vessel and operating its safety systems. Since mainte- nancepersons are not routinely involved in such activities, logically, they should not be included within the restriction's compass.

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142 APPENDIX F to pursue in administering the statutes. On the other hand, the individual provisions tend to focus too narrowly on discrete facets of the manning picture. Their rigidity deprives shipowners, masters, and seamen of the flexibility needed to develop a prosperous merchant fleet.20 In 46 U.S.C. 2103, Congress has directed the Coast Guard to enforce, carry out, and uniformly administer all the shipping statutes for which it is responsible "in the interests of marine safety, and seamen's welfare." This broad statement provides little practical guidance for administering the manning laws. In particular, it fails to inform the Coast Guard and the public how the two stated objectives, marine safety and seamen's welfare, relate to each other or to other factors that affect vessel manning. For example, economic competitivenessboth within the maritime sphere and with other modes of transportation is obviously a major factor driving the shipowner's desire to decrease crew size. It is also a necessary element in developing and maintaining the type of merchant marine fleet and infras- tructure envisioned by section 101 of the Merchant Marine Act, 1936 (46 U.S.C. app. 1101) (set forth in the attached list of authorities). Another relevant factor, repeatedly highlighted by the Maritime Administration and the Department of Defense, is the need to maintain a pool of qualified merchant mariners for national emergencies. How should these and other factors affect the vessel manning calculus? The absence of clearly stated policy objectives is a major shortcoming, but it does not present as serious an obstacle to rational treatment of vessel manning issues as does the rigidity of the current watch-standing, work-hour and work-assignment restrictions. Individually, these provisions may have been rational reactions to the circumstances that gave rise to their enactment.21 Collectively, however, they needlessly deprive the Coast Guard and the industry of the flexibility 20As this is being written, it appears that Congress is about to impose yet another disjointed manning restriction in response to a marine disaster. The House of Representatives' version of the Oil Spill legislation that is scheduled to go to conference in January 1990 would add a new subsection (n) to 46 U.S.C. 8104: On a tank vessel, a licensed individual or seaman may not be permitted to work more than 15 hours in any 24-hour period, or more than 36 hours in any 72-hour period, except in an emergent or a drill. In this subsection, "work" includes any adminis- trative duties associated with the vessel whether performed on board the vessel or ashore. H.R. 1465 4117(b), 101st Cong., 1st Sess. (passed by the House on November 9, 1989~. While this new work-hour restriction may be entirely reasonable, it would make more sense as part of comprehensive regulations issued by the Coast Guard after public study and rulemaking. 21This may be a charitable statement. Neither the work-assignment nor the work-hour restric- tion, for example, does much to serge either seamen's welfare or marine safety. At best, they provide a crude means of dealing with the issues of strain, fatigue, and boredom.

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146 APPENDIX F oilers, and water tenders shall be divided, when at sea, into at least 3 watches, and shall be kept on duty successively to perform ordinary work incident to the operation and management of the vessel.... A licensed individual or seaman in the deck or engine department may not be required to work more than 8 hours in one day. (1) a seaman may not be- (A) engaged to work alternately in the deck and engine departments; or (B) required to work in the engine department if engaged for deck department duty or required to work in the deck department if engaged for engine department duty. (2) a seaman may not be required to do unnecessary work on Sundays, Mew Year's Day, July 4th, Labor Day, Thanks- giving Day, or Christmas Day, when the vessel is in a safe harbor, but this clause does not prevent dispatch of a vessel on a voyage; and (3) when the vessel is in a safe harbor, 8 hours (including anchor watch) is a day's work. (f) Subsections (d) and (e) of this section do not limit the authority of the master or other officer or the obedience of seamen when, in the judgment of the master or other officer, any part of the crew is needed for- (1) maneuvering, shifting the berth of, mooring, or un- mooring, the vessel; (2) performing work necessary for the safety of the vessel, or the vessel's passengers, crew, or cargo; (3) saving life on board of another vessel in jeopardy; or (4) performing fire, lifeboat, or other drills in port or at sea. (n) On a tanker, a licensed individual or seaman may not be permitted to work more than 15 hours in any 24-hour period, or more than 36 hours in any 72-hour period, except in an emergency or a drill. In this subsection, 'work' includes any ad- ministrative duties associated with the vessel whether performed on board the vessel or onshore.

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STA~TES 46 U.S.C. 8301 Minimum Number of Licensed Individuals 147 (a) [A] vessel subject to inspection . . . shall engage a minimum of licensed individuals as follows: (1) Each of those vessels propelled by machinery or carry- ing passengers shall have a licensed master. (2) A vessel of at least 1,000 gross tons and propelled by machinery shall have 3 licensed mates. However, if the vessel is on a voyage of less than 400 miles from port of departure to port of final destination, it shall have 2 licensed mates. (5) A freight vessel or a passenger vessel of at least 300 gross tons and propelled by machinery shall have a licensed engineer. (d) The Secretary may- (2) increase the number of licensed individuals on a ves- sel . . . if, in the Secretary's judgment, the vessel is not sufficiently manned for safe operation. 46 U.S.C. 8304 Implementing the Officers' Competency Certificates Con- vention, 1936 (c) A person may not engage or employ an individual to serve as, and an individual may not serve as, a master, mate, or engineer on a vessel . . . if the individual does not have a license issued under section 7101 of this title authorizing service in the capacity on which the individual is to be engaged or employed. (e) A license issued to an individual to whom this section applies is a certificate of competency. (f) A designated official may detain a vessel . . . (by written order served on the owner, charterer, managing operator, agent, master, or individual in charge of the vessel) when there is reason to believe that the vessel is about to proceed from a port of the United States to the high seas in violation of this section or a provision of the Forcers' Competency Certificates Convention, 19363. The vessel may be detained until the vessel complies with this section. Clearance may not be granted to a vessel ordered detained under this section. (g) A foreign vessel to which the convention . . . applies, on the navigable waters of the United States, is subject to detention

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148 APl,L~DIX F under subsection (f) of this section, and to an examination that may be necessary to decide if there is compliance with the convention. 46 U.S.C. 8702 Certain Crew Requirements (b) A vessel may operate only if at least- (1) 75 percent of the crew in each department on board is able to understand any order spoken by the officers, and (2) 65 percent of the deck crew (excluding licensed individ- uals) have merchant mariners' documents endorsed for a rating of at least able seaman, except that this percentage may be reduced to 50 percent on a vessel permitted under section 8104 of this title to maintain a 2-watch system. (d) An individual having a rating of less than able seaman may not be permitted at the wheel in ports, harbors, and other waters subject to congested vessel traffic, or under conditions of reduced visibility, adverse weather, or other hazardous circumstances. 46 U.S.C. 8703 lLnkermen on Fink Vessels (a) A vessel of the United States to which chapter 37 of this title applies, that has on board oil or hazardous material in bulb as cargo or cargo residue, shall have a specified number of crew certified as tankermen as required by the Secretary. This requirement shall be noted on the certificate of inspection issued to the vessel. 46 U.S.C. 9101 [Manning] Standards for Foreign lank Vessels (a) (1) The Secretary shall evaluate the manning, training, qual- ification, and watchkeeping standards of a foreign country that issues documentation for any vessel to which chapter 37 of this title applies- (A) on a periodic basis; and (B) when the vessel is involved in a marine casualb re- quired to be reported under section 6101(a)~4) or (5) of this title. (2) After each evaluation made under paragraph (1) of this subsection, the Secretary shall determine whether- (A) the foreign country has standards for licensing and

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTES 149 certification of seamen that are at least equivalent to United States law or international standards accepted by the United States; and (B) those standards are being enforced. (3) If the Secretary determines under this subsection that a coun- t~y has failed to maintain or enforce standards at least equivalent to United States law or international standards accepted by the United States, the Secretary shall prohibit vessels issued docu- mentation by that country from entering the United States until the Secretary determines those standards have been established and are being enforced. (4) The Secretary may allow provisional entry of a vessel prohib- ited from entering the United States under paragraph (3) of this subsection if (A) the owner or operator of the vessel establishes, to the satisfaction of the Secretary, that the vessel is not unsafe or a threat to the marine environment; or (B) the entry is necessary for the safety of the vessel or individuals on the vessel. (b) A foreign vessel to which chapter 37 of this title applies that has on board oil or hazardous material in bulb as cargo or cargo residue shall have a specified number of personnel certified as tankerman or equivalent, as required by the Secretary, when the vessel transfers oil or hazardous material in a port or place subject to the jurisdiction of the United States. The requirement of this subsection shall be noted in applicable terminal oper- ating procedures. A transfer operation may take place only if the crewmember in charge is capable of clearly understanding instructions in English. 46 U.S.C. 9102 [Manning] Standards for Tank Vessels of the United States (a) The Secretary shall prescribe standards for the manning of each vessel of the United States to which chapter 37 of this title applies, related to the duties, qualifications, and training of the officers and crew of the vessel . . . 46 U.S.C. app. 1101 Merchant Marine Act, 1936; Declaration of Policy It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall

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150 Part II: RULES 46 C.F.R. 15.103 46 C.F.R. 15.705 APPENDIX F have a merchant marine (a) sufficient to carry its domestic water- borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of serving as a naval and military auxiliary in time of war or national emergency, (c) owned and operated under the United States flag by citizens of the United States, insofar as may be practicable, (d) composed of the best-equipped, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel, and (e) supplemented by efficient facilities for shipbuilding and ship repair. It is hereby declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine. (b) The navigation and shipping laws state that a vessel may not be operated unless certain manning requirements are met. In addition to establishing a minimum of licensed individuals and members of the crew to be carried on board certain vessels, they establish minimum qualifications concerning licenses, citizenship, and conditions of employment. It is the responsibility of the owner, charterer, managing operator, master or person in charge or command of the vessel to ensure that appropriate personnel are carried to meet the requirements of the applicable navigation and shipping laws and regulations. (c) Inspected vessels are issued a certificate of inspection which indicates the minimum complement of licensed individuals and crew (including lifeboatmen) considered necessary for safe op- eration. The certificate of inspection complements the statutory requirements but does not supersede them. (a) .... The establishment of adequate watches is the respon- sibility of the vessel's master. The Coast Guard interprets the term "watch" to be the direct performance of vessel operations, whether deck or engine, where such operations would routinely

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTES 151 be controlled and performed in a scheduled and fixed rotation. The perfor- mance of maintenance or work necessary to the vessel's safe operation on a daily basis does not in itself constitute the establishment of a watch. The minimum safe manning levels specified in a vessel's certificate of inspection takes into consideration routine maintenance requirements and ability of the crew to perform all operational evolutions, including emergencies, as well as those functions which may be assigned to persons in watches. (b) Subject to exceptions, 46 U.S.C. 8104 requires that when a master . . . establishes watches for the licensed individuals, sailors, coal passers, firemen, oilers and watertenders, the personnel shall be "divided, when at sea, into at least three watches and shall be kept on duty successively to perform ordinary work incident to the operation and management of the vessel." The Coast Guard interprets "sailors" to mean those members of the deck department other than licensed officers, whose duties involve the mechanics of conducting the vessel on its voyage, such as helmsman (wheelsman), lookout, etc., and which are necessary to the maintenance of a continuous watch. "Sailors" is not interpreted to include able seamen and ordinary seamen not performing these duties. Former 46 C.F.R. 157.20-5(a) The requirement for division into watches applies only to those classes of the crew specifically named in [46 U.S.C. 8104(d)~. 46 C.F.R. 15.715 (a) Coast Guard acceptance of automated systems to replace specific personnel or to reduce overall crew requirements is predicated upon the capabilities of the system demonstrated and a planned maintenance program which ensures continued reliability and safe operation of the vessel. (b) The OCMI considers the capabilities of an automated system in establishing initial manning levels; however, until the system is proven reliable, a manning level adequate to operate in a continuously attended mode will be specified on a vessel's COI. It remains the responsibility of the vessel's master to determine when a continuous watch is necessary.

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152 46 C.F.R. 15.810 46 C.F.R. 15.815 APPENDIX F (a) The minimum number of licensed mates required to be carried on every inspected self-propelled seagoing and Great Lakes vessel and every inspected seagoing passenger vessel is as follows: (1) Vessels of 1000 gross tons or more three licensed mates (except when on a voyage of less than 400 miles from port of departure to port of final destination two licensed mates). (2) Vessels of 100 or more gross tons but less than 1000 gross tonstwo licensed mates (except vessels of at least 100 but less than 200 gross tons on voyages which do not exceed 24 hours in durationone licensed mate). (c) The OCMI may increase the minimum number of mates indicated in (a) of this section where it is deemed the vessel's characteristics, route, or other operating conditions create special circumstances requiring an increase. (d) The Commandant will consider reductions to the number of mates required by this section when special circumstances allowing a vessel to be safely operated can be demonstrated. (a) Each person in the required complement of licensed deck individuals on inspected vessels of 300 gross tons or over which are radar equipped, shall hold a valid endorsement as radar observer. 46 C.F.R. 15.820 46 C.F.R. 15.825 (a) There must be an individual holding an appropriate license as chief engineer or a license authorizing service as chief engi- neer employed on board the following inspected mechanically propelled vessels: (1) seagoing or Great Lakes vessels of 200 gross tons and over. An individual in charge of an engineering watch on a mechan- ically propelled, seagoing, documented vessel of 200 gross tons

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTES 153 or over, other than an individual described in 15.820 must hold an appropriate license authorizing service as an assistant engi- neer. The OCMI determines the minimum number of licensed engineers required for the safe operation of inspected vessels. 46 C.F.R. 15.830 46 C.F.R. 15.840 46 C.F.R. 15.850 Radio officers are required on certain merchant vessels of the U.S. The determination of when a radio officer is required is based on FCC requirements. (b) Able seamen are rated as: unlimited, limited, special, off- shore supply vessel, sail and fishing industry. 46 U.S.C. 7312 specifies the categories of able seamen (i.e., unlimited, limited) necessary to meet the requirements of 46 U.S.C. 8702. (c) It is the responsibility of the master or person in charge to ensure that the able seamen in the service of the vessel meet the requirements of 46 U.S.C. 7312 and 8702. The requirements for the maintenance of proper lookout are specified in Rule 5 of the International Regulations for Prevent- ing Collisions at Sea, 1972 and Rule 5 of the Inland Navigation Rules Act of 1980 (33 U.S.C. 2005~. Lookout is a function to be performed by a member of a navigational watch. Part III: ADMINISTRATIVE PROVISIONS A. MARINE SAFETY MANUAL 3 MSM 21 B. Deck Engine Mechanic, Eng~neman, Oiler, And Junior Engineer. The ratings of "deck engine mechanic," "engineman," and "junior engineer" are not required on the Certificate of Inspection (COI). The minimum manning requirements are prescribed by the officer in charge marine inspection (OCMI) in accordance with 46 C.F.R. [ 15.501~. For the engineroom, these will usually include a number of oilers. However, if the owner, operator, agent, or master of an automated or partially automated vessel requests that the vessel's complement includes a deck engine mechanic or engineman, the COI will carry the requirement for "Oilers" and a notation that "junior engineers, deck engine mechanics,

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154 APPENDIX F or enginemen may be substituted for one or more oilers." [NOTE: Employment of these ratings as substitutions for oilers does not remove them from the watchstanding provisions of 46 U.S.C. 8104 and 46 C.F.R. [ 15.7053.] C. Maintenanceperson. A maintenanceperson (any rating, either deck or engine) may be required on the COI for vessels having reduced crews, due to automation or installed laborsaving devices. The OCMI may determine that such personnel are necessary for the maintenance and safe operation of automation systems or to perform labor essential for the safe operation of the vessel. Maintenancepersons may be identified by departmental affiliation (deck maintenanceperson, engine maintenanceperson) or by no affiliation, in which case the master has the discretion to determine how to best utilize the person. 3 MSM 22 Authority To Set Hours of Duty. 46 U.S.C. 8104 provides for the division of seagoing and Great Lakes merchant vessel crews into a minimum of three watches while at sea, with no more than 8 hours of work required in 1 day; for radiotelegraph operators, this requirement applies only when three or more radio officers are required. [NOTE: In accordance with an opinion of the Attorney General dated 5 October 1937 (39 Op. Att'y Gen. 112), the word "day" in the predecessor to 46 U.S.C. 8104 was construed to mean a calendar day of 24 hours, commencing at midnight, and there is no reason to alter this interpretation.] The setting of the watches is the responsiblity of the master. . . B. Watchstanding Categories. For purposes of applying the provisions of 46 U.S.C. 8104, unlicensed ratings shall be divided into successive watches and employed for the performance of ordinary work incident to the operation of the vessel, as follows: 1. Deck Department. Able Seaman (AB), Ordinary Seaman. 2. Engine Department. Oiler, Watertender, Fireman, Coal Passer. Radio Department. Radio Operator (when three or more radio officers are employed). Required Work. Seamen may not be required to work more than 8 hours in any day, except in cases of emergencies that affect the safety of the vessel, life, or property. This provision does not prohibit seamen from working overtime vo~ntanly (i.e., without direct or indirect coercion). It is not anticipated that long hours of overtime will be performed by crewmembers to the detriment of the vessel, their well-being, or

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VESSEL MANNING: NEW APPLICATIONS FOR OLD STATUTF,S 155 environmental safety. To determine whether excessive hours are being worked, the officer in charge, marine inspection (OCMI) must decide how much of the work performed was actually required in the vessel's operation. Commandant (G-MVP) shall be advised of any changes considered necessary to a vessel's existing manning level, and shall be provided appropriate documentation to ensure that manning level modifications are applied to all vessels in a class, if necessary (see 46 U.S.C. 8104 for provisions specifically applicable to documented tugs on the Great Lakes). Time "On Duty." A ship's officer who serves as nightmare while the ship is in port is considered to be "on duty" whether or not engaged in work during that time. The number of hours during which the officer is aboard in such circumstances must be figured in determining the number of hours worked during that day. Similarly, a mariner who has worked aboard ship during the day and stays aboard with the watch section at night, on call in case of fire or an emergency, is considered "on duty" within the meaning of 46 U.S.C. 8104. The statutory prohibition precluding more than 8 hours required work per day is considered to apply to those officers and crew seining in a night relief watch. The presumption is that, by accepting such employment, the night watch has voluntarily assumed the additional duty. Maintenance Arld Repair Personnel. Maintenance personnel in the deck and engine departments generally are not included in a watch system. As there is no statutory requirement for titles of the crew's positions to be identical to those stated on the Certificate of Inspection (COI), some investigation may be needed to determine the employment of a mariner should this question arise. Generally on standard non- automated vessels, deck maintenance personnel are not required by the COI, in that such duties are only remotely concerned with the safe navigation of the vessel; any deck rating or licensed officer can serve in a deck "maintenance" position. The same can be said of engine maintenance personnel. Engine maintenance personnel may be any rating in the engine department. 3 MSM 23 A. Automated Vessels. 1. General. Insofar as manning proposals based upon varying de- grees of automation are concerned, the Commandant will review all proposals objectively. Reductions in manning scales shall be granted when they will not detract fron the safe navigation of the vessel.

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156 B. Navigation and Vessel Inspection Circulars 1. NVIC 1~9: Automated Main and Auxiliary Machinery. APPENDIX F 2. NVIC 7-73: Main Propulsion Boiler Automation. 3. NVIC 6-84: Automated Main and Auxiliary Machinery, Supple- mental Guidance NVICs may be obtained from: Commanding Officer Coast Guard Marine Safety Center 400 7th Street, S.W. Washington, D.C. 20590-0001 C. Miscellaneous Administrative Guidance 1. Commandant (G-MVP-4) Letter 16712 of Oct. 14, 1988 re "Infor- mation Concerning Merchant Vessel Manning." Attached.