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Sunday, December 8, 2019

Maritime Logistics Professional

October 16, 2019

“Minor” Incident Sends Mariner Down S&R Rabbit Hole

The twists and turns of any marine casualty investigation can be unpredictable, but what is predictable is the potentially crushing cost to defend your license, livelihood and professional reputation.

It was early afternoon on a late summer day in a busy commercial and fishing port in coastal New England. The captain of an offshore supply vessel was returning to his company’s dock and was lining up to transit past the harbor’s fixed storm mitigation gate when he decided to ‘bail out’ on his approach because the tide was ebbing and the outbound current of approximately two knots was offsetting his vessel to the east. No stranger to these waters, having made the same passage dozens of times previously, he turned around and started his approach again.

As the OSV was just clearing the gate on the east side, it encountered a strong current to the east. As the vessel’s bow started to fall off, the captain took corrective action to counteract the unexpected current. Unfortunately, the current intensified further and the OSV’s starboard bow allided with the fixed gate’s concrete base. While the vessel’s fenders absorbed most of the impact, the OSV received damage to the starboard bow, the port aft stern, and the gate structure itself, which received minor damage to its concrete base.
 
The Investigation
Wisely, the captain promptly notified the Coast Guard and his company of the incident. He also contacted his license insurer which immediately assigned him a local maritime attorney to counsel him and help him prepare and submit a marine casualty report (2692). And then, of course, he went with his first mate to take a post-casualty drug test. Concurrently, the local harbor patrol inspected the allision site, visited the OSV’s dock and, ultimately, completed its own report of the incident.

The Coast Guard investigation of the incident was assigned to the closest MSO which was located in a neighboring state. Upon completing its investigation the New England-based MSO forwarded the report to her counterpart in the southeast state where the vessel’s captain had subsequently returned to his primary residence.

A little more than two months later, the MSO who received the investigative file and recommendations from the USCG’s New England office informed the captain that it had initiated an administrative proceeding against his credentials/license and instructed him  to attend a ‘meeting’ with the USCG office in his hometown.

The Hammer Comes Down
The captain’s license insurer promptly assigned its policyholder with a second local maritime attorney from its nationwide network. The new attorney was instructed to contact the New England attorney originally assigned to the license-insured mariner to discuss the particulars of the incident and to access his notes related to the incident in order to properly prepare for the meeting with the Coast Guard.

Surprisingly, when the captain and his attorney reported to the meeting expecting to provide an oral statement regarding the now two-month-old incident, he was served with an official Complaint charging Negligence, proposing a six-month outright license suspension. Cited was the presumption of negligence of the captain for the allision with a fixed object [as described by 46 U.S.C. & 7703(1)(B) and defined by 46 CFR & 5.29]. 

The Coast Guard also proposed a Settlement Agreement to preclude proceeding to an Administrative Court trial. The offer was for the captain to either surrender his license voluntarily for a three-month outright license suspension, or to surrender it for a two-month outright license suspension, accompanied by his satisfactory completion of a bridge management resources (BRM) course.

The shaken mariner was given 21 days to make his decision on how he would prefer to proceed.

While the captain’s new local attorney was familiar with and had a good working relationship with the Commanding Officer (CO) of the Southeastern port city’s USCG Prevention Department, he suspected the chances were slight that the CO would be able to resolve an issue driven by recommendations made by the Prevention Department in New England which had conducted the onsite investigation of the incident and prepared the file upon which the negligence charge and settlement options were based.

His suspicions were quickly confirmed when the USCG officer in New England informed that she would not consider any mitigation of the sanctions sought either to a probationary suspension or Letter of Warning (LOW). She further explained that she could not change her sanction recommendations because the Complaint was already on record and both it and the proposed sanction had been approved by her superior.
She also mentioned the USCG was concerned about a prior non-work-related DUI on the captain’s record, particularly because he did not report for his post-casualty alcohol screening until 24 hours after the allision incident. Coast Guard regulations provide for a stricter sanction if a charged mariner has had a ‘prior’.

A Hobson’s Choice
While deciding how best to proceed, the two maritime attorneys working the case considered answering the Complaint and requesting a meeting with the attorney from the National Maritime Center (NMC) assigned to the case … provided the captain was onboard with that approach. They also discussed contacting eyewitnesses to the incident and expert witnesses with knowledge of the tide conditions at the allision site in the event that the case wound up in an Administrative Law courtroom for trial.

With the captain’s consent, the decision was made for the local attorney to Answer the Complaint and Negligence charge, informing the USCG that the captain/respondent chose to proceed to trial but, because of the need to prepare his client, witnesses and expert for same, he would also need to conduct discovery regarding the matter prior to the hearing. As a result, the Coast Guard rescheduled the pre-hearing conference 30 days later than its original date.

At that meeting, a full five months after the allision, a Scheduling Order was proposed as expected, but what was not expected was the attorney for the Coast Guard making an ‘ore tenus’ motion to transfer venue back to New England. The captain’s southeast-based attorney vigorously opposed the motion, arguing that it would be unfair to the captain (and his insurer) to incur the financial and logistical burdens of changing counsel (again) and traveling to New England for the hearing. The Court advised that it would take the venue transfer request under advisement and instructed the Coast Guard to submit a written motion for same.

Less than a month after that meeting, the Court conducted a telephone hearing on the motion to transfer venue and denied the USCG’s request. More importantly, the Coast Guard reiterated its position regarding sanction, minimally demanding a two-month outright license suspension with the satisfactory completion of a bridge management resources course.

Concluding with his attorneys that that offer was likely the best option available to him and expressing a strong desire to put the whole issue behind him, he decided to accept the Settlement Offer as proposed: “if the Respondent fails to satisfactorily complete the suspension period two months hence, then the Respondent’s Credentials will be suspended outright for three months,” or “if the Respondent successfully completes the conditions to the satisfaction of the U.S. Coast Guard, then the Respondent’s Credentials will be suspended outright for two months.”

Tangential Issues
Fully supported by his then (and current) employer throughout the six-month ordeal, the OSV captain endured a series of regulatory enforcement, prior history and venue squabbles that truly tested his and his attorneys’ patience and resolve. In the end, while a probationary suspension would have been preferred given the facts of the relatively minor allision incident, the licensed-insured mariner was at least spared the over $32,000 six-month cost of his  legal representation which was fully paid by his license insurance policy.

Once again proving that, while the twists and turns of any marine casualty investigation and prosecution can indeed be very unpredictable, what is predictable is the potentially crushing cost to defend your license, livelihood and professional reputation without the benefit of your own counsel provided by a time-tested license insurance policy.


National Maritime CenterNew EnglandU.S. Coast Guard