Be Careful What You Wish For
It has been an interesting week, to say the least. Last Friday, a friend of mine made a point of asking me if I had watched the NTSB public hearings (8-9 April) or if I had seen the video posted on the NTSB WEB site. Since I had been on vacation that week, I had to admit that I hadn't yet tuned in. He strongly advised me to do so and so I did at my earliest convenience. The video of "Panel Number 3" on the second day of testimony, which laid John Cota's personal and medical details bare to the bone for the entire world to see, was a particularly disturbing event.
Today, and as the U.S. House of Representatives contemplated and eventually overwhelmingly passed, among other things, taking the ALJ and investigative responsibilities from the U.S. Coast Guard and placing these duties squarely in the lap of the NTSB, it is worth offering a word of caution. You may remember that the Coast Guard's Administrative Law Judges last year came under intense scrutiny as allegations of system wide bias against mariners accused of various infractions came to light. The new "fix," proposed partly by Maryland Congressman Elijah Cummings (D), is intended to provide a change of venue of sorts for U.S. merchant seamen who find themselves in trouble. The mariners who loudly pushed for the dismantling of the Coast Guard's ALJ system may soon get their wish. They also may come to someday regret the fix even more strenuously.
HR2830 is flawed in more ways than one, but I can't think of anything more ill-advised than passing off all of the Coast Guard's maritime cases to the NTSB, beginning as early as October of this year. As many as 600 professional mariners annually can find themselves accused of any number of crimes, including but not limited to drug use, incompetence, negligence or other infractions while working on the water. But, the NTSB's April 9th brazen disclosures of the most intimate details of John Cota's life history should provide American mariners everywhere ample notice that the new system will be no more benevolent than the last. There's also no evidence to show that it will be more competent.
The ALJ / NTSB proposal is just one of many aspects of HR2830 which either make little sense, or clearly indicate that the drafters are simply clueless about how things work in the real world – on the waterfront and beyond. The President has threatened to veto the bill purely on the grounds that the provision that stipulates that the Coast Guard provide the primary security around LNG terminals would detract from their overall homeland security mission, when private assets should be made available to take care of this for-profit enterprise. And, while this point is well taken, I could also point to unanswered questions in Titles V & VI of the bill as ample reason to put on the brakes. But, you'll have to do your own research on those points to see what I am talking about.
The House approval vote(*) -- 395-7, a veto-proof margin -- on this bill came at about the same moment that I was finishing this editorial, but the final vote count will not change what I am writing. I have, as a general policy, been reluctant to make comment or judgment on Captain John Cota and/or the particulars of the COSCO BUSAN allision. I've had plenty of opportunity to do so, as well as countless submissions from "industry experts" who wanted me to put their copy online. I don't think that piling on at this point is a good idea, nor will it add anything of value to the discussion. I do know one thing: He didn't deserve what he got on the 9th of April – no matter what you think of him, the accident or anything else.
One of the primary goals of the Coast Guard's new "face" as they attempt to restore mariner and maritime industry confidence in what they do is the absolute commitment to honoring and respecting the mariner and the industry that they serve. Part of that includes a solemn commitment to mariner privacy when it comes to enforcing the new, stricter medical requirements now being implemented by the new and improved National Maritime Center (NMC) in West Virginia. I have received assurances from reliable and well-placed sources that today's Coast Guard would have never disclosed Cota's most intimate details in the public limelight and that they were surprised when the NTSB did. Is this the "honor and respect" that NTSB will afford the mariner in their new, proposed roles as sole arbiter of mariner justice?
Those of you who know me best also know that I'm not shy about publicizing the criticism of the Coast Guard from others, or joining in when the situation merits it. There are probably ten reasons to defeat HR2830, as it is currently written. And, there are still many more unanswered questions about the Coast Guard's ALJ program. No doubt, like anything else in my life – or yours, for that matter – there are improvements to be made there. But, a "Band-Aid" fix that simply shifts a particular piece of work from one government entity to another will not be the panacea that we seek.
The medical history of the pilot of the COSCO BUSAN nominally has a place in the investigation and the ultimate curative fix that will follow this regrettable incident. The NTSB's casual discussion of Captain Cota's personal details, however, now posted like a "YOUTUBE" or "MYSPACE" event on the worldwide web, should give all of us pause. A few years ago, the Coast Guard was essentially forced to abdicate a large portion of its investigative powers to the NTSB. Now, Congress would have us send the NTSB the entire guts of the maritime legal system for U.S. mariners as we see it today. It doesn't sound like a good idea to me.
Before we throw the baby out with the bath water, it might be a good idea to wait and see what happens when the smoke clears and John Cota (and his lawyers) realizes what his legal options are. In the meantime, I'll settle for a Presidential veto for one of ten other reasons. Like everything else in this complicated world of maritime affairs, anyone who has had, at one time or another, the misfortune to fall into a swimming pool seems to now think that they are an expert on how to get things done. Maybe we ought to be thinking instead about moving the NTSB's maritime investigative powers back to where they belong – in the Coast Guard. But, we don't want to jump to any snap conclusions here. Or, do we? – MarEx
(*)The House measure still needs to be reconciled with the Senate version, hence this bill is not yet a done deal. But, it certainly appears that prevailing sentiment will carry the day and a Presidential veto may not be enough, in any event.
Joseph Keefe is the Managing Editor of THE MARITIME EXECUTIVE. He can be reached with comments on this article at [email protected].
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