[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
FISCAL YEAR 2007 COAST GUARD AUTHORIZING LEGISLATION
=======================================================================
(109-81)
HEARING
BEFORE THE
SUBCOMMITTEE ON
COAST GUARD AND MARITIME TRANSPORTATION
OF THE
COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 20, 2006
__________
Printed for the use of the
Committee on Transportation and Infrastructure
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COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
DON YOUNG, Alaska, Chairman
THOMAS E. PETRI, Wisconsin, Vice- JAMES L. OBERSTAR, Minnesota
Chair NICK J. RAHALL, II, West Virginia
SHERWOOD L. BOEHLERT, New York PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee ELEANOR HOLMES NORTON, District of
WAYNE T. GILCHREST, Maryland Columbia
JOHN L. MICA, Florida JERROLD NADLER, New York
PETER HOEKSTRA, Michigan CORRINE BROWN, Florida
VERNON J. EHLERS, Michigan BOB FILNER, California
SPENCER BACHUS, Alabama EDDIE BERNICE JOHNSON, Texas
STEVEN C. LaTOURETTE, Ohio GENE TAYLOR, Mississippi
SUE W. KELLY, New York JUANITA MILLENDER-McDONALD,
RICHARD H. BAKER, Louisiana California
ROBERT W. NEY, Ohio ELIJAH E. CUMMINGS, Maryland
FRANK A. LoBIONDO, New Jersey EARL BLUMENAUER, Oregon
JERRY MORAN, Kansas ELLEN O. TAUSCHER, California
GARY G. MILLER, California BILL PASCRELL, Jr., New Jersey
ROBIN HAYES, North Carolina LEONARD L. BOSWELL, Iowa
ROB SIMMONS, Connecticut TIM HOLDEN, Pennsylvania
HENRY E. BROWN, Jr., South Carolina BRIAN BAIRD, Washington
TIMOTHY V. JOHNSON, Illinois SHELLEY BERKLEY, Nevada
TODD RUSSELL PLATTS, Pennsylvania JIM MATHESON, Utah
SAM GRAVES, Missouri MICHAEL M. HONDA, California
MARK R. KENNEDY, Minnesota RICK LARSEN, Washington
BILL SHUSTER, Pennsylvania MICHAEL E. CAPUANO, Massachusetts
JOHN BOOZMAN, Arkansas ANTHONY D. WEINER, New York
JIM GERLACH, Pennsylvania JULIA CARSON, Indiana
MARIO DIAZ-BALART, Florida TIMOTHY H. BISHOP, New York
JON C. PORTER, Nevada MICHAEL H. MICHAUD, Maine
TOM OSBORNE, Nebraska LINCOLN DAVIS, Tennessee
KENNY MARCHANT, Texas BEN CHANDLER, Kentucky
MICHAEL E. SODREL, Indiana BRIAN HIGGINS, New York
CHARLES W. DENT, Pennsylvania RUSS CARNAHAN, Missouri
TED POE, Texas ALLYSON Y. SCHWARTZ, Pennsylvania
DAVID G. REICHERT, Washington JOHN T. SALAZAR, Colorado
CONNIE MACK, Florida JOHN BARROW, Georgia
JOHN R. `RANDY' KUHL, Jr., New York
LUIS G. FORTUNO, Puerto Rico
LYNN A. WESTMORELAND, Georgia
CHARLES W. BOUSTANY, Jr., Louisiana
JEAN SCHMIDT, Ohio
(ii)
SUBCOMMITTEE ON COAST GUARD AND MARITIME TRANSPORTATION
FRANK A. LOBIONDO, New Jersey, Chairman
HOWARD COBLE, North Carolina BOB FILNER, California, Ranking
WAYNE T. GILCHREST, Maryland Democrat
PETER HOEKSTRA, Michigan CORRINE BROWN, Florida
ROB SIMMONS, Connecticut GENE TAYLOR, Mississippi
MARIO DIAZ-BALART, Florida JUANITA MILLENDER-McDONALD,
DAVID G. REICHERT, Washington,Vice- California
Chair MICHAEL M. HONDA, California
CONNIE MACK, Florida ANTHONY D. WEINER, New York
LUIS G. FORTUNO, Puerto Rico BRIAN HIGGINS, New York
CHARLES W. BOUSTANY, Jr., Louisiana BRIAN BAIRD, Washington
DON YOUNG, Alaska JAMES L. OBERSTAR, Minnesota
(Ex Officio) (Ex Officio)
(iii)
CONTENTS
TESTIMONY
Page
Baumgartner, Rear Admiral William D., Judge Advocate General,
U.S. Coast Guard............................................... 8
Nordquist, Professor Myron H., Center for Oceans Law and Policy,
University of Virginia School of Law........................... 26
Stevenson, Douglas B., Director, Center for Seafarers' Rights of
Seamen's Church Institute of New York and New Jersey........... 26
PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS
Filner, Hon. Bob, of California.................................. 47
LoBiondo, Hon. Frank A., of New Jersey........................... 49
Oberstar, Hon. James L., of Minnesota............................ 62
Young, Hon. Don, of Alaska....................................... 77
PREPARED STATEMENTS SUBMITTED BY THE WITNESSES
Baumgartner, Rear Admiral William D............................. 42
Nordquist, Professor Myron H.................................... 50
Stevenson, Douglas B............................................ 65
SUBMISSIONS FOR THE RECORD
Baumgartner, Rear Admiral William D., Judge Advocate General,
U.S. Coast Guard:
Response to a question from Rep. Oberstar concerning authorized
strength and current levels.................................. 13
Response to a question fron Rep. Oberstar concerning types of
data gathered by UAVs........................................ 15
Response to a question from Rep. Coble concerning overall
enlisted and officer strength................................ 18
ADDITION TO THE RECORD
Reserve Officers Association of the United States, statement..... 78
FISCAL YEAR 2007 COAST GUARD AUTHORIZING LEGISLATION
----------
Tuesday, June 20, 2006
House of Representatives, Subcommittee on Coast
Guard and Maritime Transportation, Committee on
Transportation and Infrastructure, Washington,
D.C.
The subcommittee met, pursuant to call, at 2:35 p.m., in
Room 2167, Rayburn House Office Building, Hon. Frank A.
LoBiondo [Chairman of the subcommittee] Presiding.
Mr. LoBiondo. The Subcommittee on Coast Guard and Maritime
Transportation will come to order. Today the subcommittee is
meeting to review the discussion draft of the Coast Guard
Authorization Act of 2006, but we are very pleased that the
Chairman of the full committee, Chairman Young, is here; and I
am going to defer an opening statement to allow Chairman Young
to have this time.
Mr. Chairman.
Mr. Young. I thank you and I do apologize to my good Coast
Guard people who are sitting at the table, but I have an
opening statement and I will have to leave.
I want to thank you, Mr. Chairman for having this important
hearing of the Reauthorization Act of 2006. And for those in
the room, we will finish 2005 sometime, hopefully, this week or
next week. This is a constant battle but we will get it done.
But I think it is vitally important we go forward with 2006.
This bill does provide a funding level that will give the Coast
Guard the resources it needs to carry out what we have charged
them with, not only in its traditional missions but its new
homeland security missions.
As we saw last summer, the Coast Guard provides vital
services. We all know that. I am extremely pleased with what
they have been able to do in Alaska, and I am very pleased to
say that we will continue that effort.
The second panel--and this is one thing I am very
interested in discussing, whether to set limits on the
currently open-ended penalty for incorrect payment of seamen's
wages.
I would like to say one thing that the witnesses will be
testifying, and I know what they will be testifying to because
actually I read part of it. This wage statute was first passed
in 1790. It was last admitted in 1915. In 1790 it was only 12
years after Captain Cook explored much of my home State for the
first time. In 1790 the voyages could last for years; and once
a vessel was gone from port, remedies against the owner were
impossible to enforce. Therefore, a severe and immediate and
flexible penalty was more than warranted.
In 1915, only 3 years after the Titanic sank in the frigid
North Atlantic, sending 1,523 passengers and crew to their
deaths, given the communications technology available in the
second half of the 18th century, it was years after Captain
Cook's voyages ended that the world learned of his discoveries.
Only after the publications of his journals did they find out.
For those in the room who are under 30, it may be a shock
today that Captain Cook neither blogged nor glogged nor Podcast
from his flagship, the Endeavor. Likewise, had communication
technologies available today been available in 1912, rescue
vessels would have likely arrived to save virtually those all
that perished on the Titanic.
So my question to the witnesses would be: In light of the
communication revolution that has occurred in the total global
climate--I say "total" because even India has better
communication than we do in many areas, as well as Indonesia
and, as well as of course, China--the ability to track vessels
and their corporate owners and the ease of travel around the
world, I think it is possible to update a law that was first
passed before Nelson defeated Napoleon at Trafalgar to reflect
the technology available to today's seaman.
So for the second panel I hope that you address that issue
because, Mr. Chairman, it is crucially important that although
some will say this is to protect the seamen--and I understand
that, I want to protect the seamen because I am a licensed
mariner and I will continue to do that--but there is a
possibility that this law should be revived and studied and, to
the extent revived, to allow I believe a proper solution to a
very serious problem.
I have done a little research and I think we have one case
where there was a technical error of payment to a seamen of
$20, but it compounded over approximately 10 years and for some
reason it was not disclosed, and it ended up being a $400,000
or better penalty against the owners, which they never realized
was $20. And for you trial lawyers in the room, shame on you.
This was not the intent of the law. It was to protect the
vessels, owners, and the seamen, not to be used as a tool by a
group of trial lawyers to make money. And that is how it is
being used today.
Mr. Chairman, I am advising you that it is my intent that I
am trying to make sure that this is adjusted and made more
reliable in today's modern communications so that we will have
a "yes" in an attempt to protect the seamen, but not be taken
advantage of or advantage of the owner of vessel.
Mr. Chairman, I yield back the balance of my time.
Mr. LoBiondo. Thank you, Chairman Young.
I ask unanimous consent that Mrs. Kelly be allowed to sit
as part of this committee for this hearing today. So ordered.
Again, the subcommittee is here to review a discussion
draft of the Coast Guard Authorization Act of 2006.
This hearing will give all the members of the subcommittee
an opportunity to consider the authorized funding levels and
the legislative language that is included in this draft bill.
The draft bill would authorize nearly $8.3 billion in funding
for the Coast Guard's fiscal year 2007. This authorization
includes funding to support each of the Coast Guard's important
missions.
For purposes of the discussion, the draft bill would
authorize $1.1 billion for the Coast Guard's integrated
deepwater program. Deepwater will result in the complete
recapitalization of the Coast Guard's vessels, aircraft, and
associated communications and control systems. Because the
Coast Guard has been tasked with increased responsibilities
following September 11, the service's legacy fleet of vessels
and aircraft are deteriorating at an alarming rate. As I have
in previous years, I intend to support an increase in the
authorized funding level for the deepwater program as this bill
moves forward. Additional funding is necessary to accelerate
the production of new deepwater assets and to sustain the
service's existing legacy assets.
I cannot overestimate my concern with the pace of the
deepwater program. Each day the men and women of the Coast
Guard are faced with the possibility of a major asset failure
that puts the safety of the personnel and the success of their
missions in jeopardy. I am particularly concerned about the
service's 110-foot patrol boat class which continues to suffer
from hull breaches and unexpected maintenance needs. First, the
Coast Guard planned to convert the remaining 100-foot patrol
boats by lengthening the hulls and improving the electronic and
communication systems that have become outdated. Following
construction, however, the Coast Guard realized that the 123-
foot converted boats were plagued with design programs and, as
a result, the conversion program has been terminated.
To address the increasing gap in patrol boat readiness, the
Coast Guard then proposed to accelerate construction of the
Fast Response Cutter. Just a few months ago, however, the Coast
Guard postponed construction and acquisition of the Fast
Response Cutter due to concerns about the vessel's proposed
design.
I am deeply concerned by these problems and, as a result, I
would urge the Coast Guard to move quickly to identify an
available design to replace the 110-foot patrol boat class. We
must complete this program with all deliberate speed. I urge my
colleagues to support funding levels that will not only allow
the Coast Guard to acquire the assets they need, but would
allow the program to be accelerated and brought on line over
the next 15 years rather than the 25 years of the revised plan.
In addition to the authorization of the fiscal year 2007
funding, the draft bill proposes to make several amendments to
current law. For example, the bill contains a proposal that
would amend the Maritime Drug Law Enforcement Act to establish
a civil penalty for individuals who possess personal use
quantities of narcotics on a vessel or at a maritime facility.
Drug use on vessels can have a deadly consequence, and this
provision will give the Coast Guard another tool to help keep
our waterways safe.
This hearing on the draft bill is the first step in the
process to develop a bill that takes a balanced approach to
providing the resources and authorities necessary to support
each of the Coast Guard's many and varied missions.
I want to take this time to again commend the men and women
of the Coast Guard for their hard work and self-sacrifice. I
want to thank the witnesses for being here this afternoon. We
look forward to their testimony.
Now I turn to Mr. Filner.
Mr. Filner. Thank you, Mr. Chairman, and thank you for this
hearing today. I know you are trying to mark up the legislation
this week, and the full committee soon after that. So we have a
lot of things to work out.
The seamen's wage penalty statute--because, as the Chairman
stated, it was enacted in the very first Congress in 1790. I
asked the staff if the Chairman was here for that.
Mr. LoBiondo. I think Mr. Oberstar was.
Mr. Filner. LoBiondo, you are getting better over the
years.
Mr. LoBiondo. Work with me.
Mr. Filner. It is my understanding that in 2003, Royal
Caribbean Cruises--oh, right on schedule.
Mr. LoBiondo. We were just praising you, Mr. Oberstar.
Mr. Oberstar. I thought so.
Mr. Filner. Your ears were burning. We wanted to get some
personal testimony on the first Congress as it passed the
seamen's wage penalty statute, so I know you will do that for
us.
Mr. Oberstar. I was probably there.
Mr. Filner. It is my understanding that in 2003 Royal
Caribbean Cruises reached a settlement agreement for unpaid
overtime wage claims for over $18 million, and a few years
later Norweigian Cruise Lines reached a settlement agreement
for similar unpaid wage claims for approximately $25 million.
Now it seems that the cruise lines are seeking to have the Wage
Penalty Act changed to decrease the chances of them ever being
penalized if they fail to pay the wages due without sufficient
cause.
So I am looking forward to today's hearing. It is
unfortunate that the cruise line industry is not participating
in these hearings so that the subcommittee can get the
information it needs before deciding on whether or not to
change this statute.
Thank you, Mr. Chairman for scheduling this hearing. I look
forward to working with you.
Mr. LoBiondo. Thank you.
Mr. Simmons.
Mr. Simmons. Thank you, Mr. Chairman. I have reviewed the
document that we are discussing here today. I am particularly
interested in the provision on the possible movement of the
Coast Guard Band and the 180-day notice which I think is very
appropriate. I know that members of the band live very happily
in my district, and the idea that we move the band to some
other location would be a matter of concern to them. So I think
it is important that we provide those individuals with that
protection.
I am also very interested in section 401 which authorizes
$3 million to improve the boarding team communications. That
has been an issue that has been under review by the Coast Guard
R&D Center. They have some very interesting new protections,
new technology which helps protect our "coasties" as they board
vessels. And I think that is a very positive development.
Mr. Chairman, I do intend tomorrow to offer an amendment on
the issue that has occupied the attention of the Coast Guard
Academy, the issue of sexual harassment and violence. What I
intend to do is offer an amendment that would require the Coast
Guard Academy to adhere to the same requirements that apply to
other service academies.
I would be interested if our witness has any comments on
that, but I feel it is appropriate that the service academies
have a uniform approach to this important issue, which is why I
would be interested in conforming the Coast Guard Academy to
the other service academies on this subject. That being said,
Mr. Chairman, I yield back the balance of my time.
Mr. LoBiondo. Thank you Mr. Simmons.
Mr. Oberstar, thank you for joining us.
Mr. Oberstar. Well, it is always a pleasure to be with you,
Mr. Chairman. And I appreciate the cooperation of the full
committee chairman, Mr. Young, and you in scheduling this
hearing after the issue--one of the key issues, but the
fundamental issue of this markup hearing today and the markup
to follow is that of seamen's wages. And at the time, I said we
had not had hearings on the matter, we ought to explore the
issue in full open committee hearing. We will have that
opportunity today; although I note--with Mr. Filner--with
regret that the cruise lines are not here since they are the
principal focus of concern.
There are a number of issues that I will want to explore
with witnesses. First is a proposal to change the penalty as it
applies to foreign flag cruise ships operating out of U.S.
Ports, requiring the seafarer to prove that the employer did
not have sufficient cause to pay him. I think that could be a
very serious, even insurmountable obstacle.
To notify an employer of errors in the paycheck within 180
days--180 days might seem to be a reasonable amount of time,
but when you have language barriers, when you have displacement
circumstances, and the person does not have all the facts at
hand, it becomes very difficult to obtain the information with
which the seafarer must make his case.
Allowing--sort of allowing in quotes, the seamen to pay for
his own health insurance. Courts have held that the vessel
owner is liable to pay for maintenance and cure in the quaint
ancient term of art.
Authorizing pay to be electronically deposited. That is
something we can discuss on how that will be accomplished and
what way will it be done. I think that is a matter that
probably can be worked out. But of concern to me is that the
proposal to let the vessel owner have 4 days after the seamen
is discharged to pay what he has earned, even though the person
may well be in some godforsaken country far from our shores and
far from that vessel by the time those 4 days are up.
How do you obtain justice? It virtually eliminates the
possibility of class action suit in this discussion draft, and
it allows shipowners who intentionally defraud a seaman of his
wages to avoid paying them, even if the seaman does not catch
up with that fraud within 30 days after discharge.
Now it can be argued, as some have, that this set of laws
under which ships operate today was written in an earlier era.
Well, it was written 220 years ago. But many of the
circumstances have not changed greatly from the time of sailing
vessels and wooden hulls. So I just want to see what
justification there is for these changes, and, more
importantly, what the consequences are for the person, for the
individual. Even though circumstances have changed greatly,
ships are fast, iron hulls, steel hulls and electronics and all
the rest, you still have operators who are not playing it
straight. And in the end, I know from my recollection of miners
working in the underground iron ore mines, they were exploited
until we had a union. And only with the union were we able to
get justice.
And before we change a law that has operated for a very
long time in the favor of the worker who makes the vessel
possible, we have to be very, very sure that we are doing the
right thing for the one who puts himself at risk.
Thank you, Mr. Chairman.
Mr. LoBiondo. Thank you, Mr. Oberstar.
Mr. Diaz-Balart, do you have any opening statement?
Mr. Diaz-Balart. No, thank you.
Mr. LoBiondo. Mr. Fortuno.
Mr. Fortuno. No.
Mr. LoBiondo. Mr. Baird.
Mr. Baird. I just have a very brief opening statement, but
really on more of a personal matter. Two weeks ago one of my
staff members lost her son in a boating accident off the coast
of California, and I just want to thank the Coast Guard for
their prompt response, professionalism. They cared for the
family, and you folks did everything you could to save this
young man, and I am extremely grateful and I want to express
that on behalf of my staff and their family. Thank you.
Mr. LoBiondo. Mrs. Kelly.
Mrs. Kelly. Thank you. We forget that so much of the
mission of the Coast Guard is helping people in distress and
for that all of us need to be grateful and thankful.
Chairman LoBiondo, last month before the hearing before the
subcommittee, Rear Admiral Joseph Nimick, a colleague of
today's distinguished witness, Admiral Baumgartner,
acknowledged that the vessels currently supplied by the Coast
Guard to protect the nuclear facility along the Hudson River in
my district are inadequate to intercept and destroy waterborne
threats. This appears to be true for all U.S. Nuclear
facilities that lie along navigable waters, not just the one
that lies 25 miles north of New York City.
I introduced legislation to fix this glaring gap in our
Nation's security chain just last week. My bill, which is H.R.
5614, would make the Coast Guard the lead Federal agency for
naval defense of U.S. Nuclear facilities on navigable
waterways. As I have said in previous hearings before this
subcommittee, a tugboat with no fixed armament and weekly
flyover do not adequately address the threat to a nuclear
facility in the middle of the Nation's top terror target.
While in New York, we maintain an added layer of protection
from the New York State Naval Militia. These are brave
volunteers who are underequipped and lack the proper authority
to interdict in the face of danger. My bill would require the
Coast Guard to provide weaponry on board of such security
vessels capable of intercepting and destroying potential
threats. The tugboat class vessels currently provided lack
capable hardware.
Finally, my bill would allow the Coast Guard Commandant to
work with the Energy Department to determine what facilities
are at greatest risk, what those risks are, and how they can
best be addressed.
Chairman LoBiondo, Admiral Baumgartner, I recognize these
are new tasks and they would require increased investment on
the part of Congress in the Coast Guard and in the Coast Guard
capabilities. But I have long been a supporter of the deepwater
program. I remain committed to obtaining the resources
necessary for the Coast Guard to carry out these functions, and
I and my constituents feel these are vital to the national
security. I hope that as the reauthorization moves forward, I
will be able to work with you, Chairman LoBiondo and Chairman
Young, and others in incorporating this legislation into the
reauthorization of this act.
I strongly support the Coast Guard. I am most appreciative
of everything the Coast Guard does to keep us all safe in
navigable waters, and I thank you, Rear Admiral Baumgartner,
for coming and talking to us today.
Mr. Chairman, I yield back the balance of my time.
Mr. LoBiondo. Thank you.
Ms. Brown, do you have an opening statement?
Ms. Brown. Thank you. I wanted to thank the Chairman and
the Ranking Member for holding today's hearing on the Coast
Guard. The Coast Guard has been protecting our shores for more
than 200 years and they have done an outstanding job.
The Coast Guard was the first agency--and I often point
that out--to react to the terrorist attack of September 11, and
was the only agency in the Bush administration to actually do
their jobs during Hurricane Katrina. But we know that they also
get caught up in red tape in the Department of Homeland
Security, and we need to keep the Department's feet to the fire
so they do not stand in the way of the Coast Guard's mission.
This year's reauthorization includes several provisions
that are extremely important to the cruise industry, which has
a $13 billion impact on my home State of Florida. These
important changes in the wage, penalties, and cash payment
provisions bring those maritime laws into the modern era and
recognize the major changes that have taken place in employee
rights and modern thinking. The wage penalty change provides an
element of fairness for both the cruise industry and their
workers by ensuring that seamen get their full pay, while
protecting their employees from unfair penalties.
The direct deposit provision provides additional banking
options, saving seamen money that should be going to their
families. Each payday, these employees are forced to pay
Western Union hundreds of their hard-earned dollars just so
they can send their paychecks back home. It also adds a new
level of security by removing the temptation of a safe full of
money from each cruise ship, which I believe may have been the
rationale for the last November pirate attack off the coast of
the Somalia. I appreciate the committee including these
provisions and I hope they remain throughout the bill.
Mr. Chairman, I yield back the balance of my time and I ask
my full statement be entered into the record.
Mr. LoBiondo. Without objection.
We are now very pleased to welcome Rear Admiral William D.
Baumgartner, Judge Advocate General for the United States Coast
Guard. Admiral, please proceed.
TESTIMONY OF REAR ADMIRAL WILLIAM D. BAUMGARTNER, JUDGE
ADVOCATE GENERAL, UNITED STATES COAST GUARD
Admiral Baumgartner. Chairman LoBiondo, Representative
Filner, and members of the subcommittee, good afternoon and
thank you for the opportunity to testify on the administration
proposal of the Coast Guard Maritime Transportation Act of
2006. Mr. Chairman, for the purposes of this hearing I ask that
my written statement be entered into the committee record and
that I be allowed to summarize my remarks here.
Mr. LoBiondo. Without objection.
Admiral Baumgartner. Before turning to the proposal, I wish
to express the Coast Guard's gratitude for the congressional
response to our request for emergency powers in the wake of
Hurricanes Katrina and Rita. We truly appreciate the speed with
which Congress acted. As you know, H.R. 889 would make
permanent some of those emergency powers, and grant or enhance
other Coast Guard authorities. The Commandant appreciates the
subcommittee's work on H.R. 889 and looks forward to
implementing those provisions once they become law. We are also
grateful for the kind comments that I received this afternoon
from you.
Now, with regards to the Coast Guard and Maritime
Transportation Act of 2006, we would authorize the funds and
end strengths requested in the President's fiscal year 2007
budget and provide important new authorities as well as expand
and clarify existing authorities.
Four provisions warrant particular attention: section 205,
merchant mariner credentials; section 202, technical amendments
to tonnage measurement law; section 403, Maritime Alien
Smuggling Law Enforcement Act, or MASLEA; and section 401,
Maritime Drug Law Enforcement Act amendment on simple
possession.
The Coast Guard first proposed amendments to the merchant
mariner credential statutes in 2005. In response to the
subcommittee's direction, the Coast Guard has conducted an
extensive public outreach effort, and section 205 is the
culmination of that outreach. These amendments now include a
safe harbor provision for innocent errors and protections from
civil liability for persons helping others apply for a
credential. They also provide a much clearer statutory language
and take into account the findings or recommendations of the 9/
11 Commission.
Finally, they allow for immediate temporary suspension of a
merchant mariner credential when a mariner is involved in an
accident involving death or serious injury and when there is
probable cause to believe that that mariner was at fault.
Next, I will turn to our proposed amendments for tonnage
measurement. Existing tonnage law is difficult to apply to some
categories of U.S. Flag vessels and can create loopholes for
certain foreign flag vessels. Section 202, another provision
developed in consultation with industry and labor, would remove
conflicting language that suggests both a U.S. Flag vessel is
ineligible for regulatory measurement and only existing vessels
are eligible for tonnage grandfathering international
agreements and laws of the United States.
As well, section 202 would extend mandatory convention
measurement to some undocumented vessels. It would also allow
undocumented vessels to be assigned regulatory tonnage. Some of
these amendments are found in section 309 of the committee's
discussion draft.
Now I would like to discuss section 403 the Maritime Alien
Smuggling Law Enforcement Act, or MASLEA. During fiscal years
2004 and 2005, the Coast Guard interdicted over 840 maritime
smugglers facilitating or attempting to facilitate the illegal
entry of aliens into the United States. Yet, less than 3
percent of these smugglers were prosecuted. This low statistic
is largely the result of current law, which was not designed
for the unique aspects of extraterritorial maritime law
enforcement that makes meaningful prosecutions difficult. With
little deterrent effect, maritime smugglers consider such
occasional prosecution as merely the cost of doing business.
Section 403 which is modeled after the highly successful
Maritime Drug Law Enforcement act, would address these
shortcomings and enable us to improve security of our maritime
borders through the effective prosecution of maritime migrant
smugglers.
Section 401 would establish a civil penalty of an offense
for simple possession of narcotics aboard vessels subject to
the jurisdiction of the United States. This provision will
deliver meaningful yet measured consequences for illegal and
unsafe conduct. In no way is this measure intended to condone
possession or use of narcotics. Rather, it will complement
existing law and effectuate congressional intent with regard to
the possession of controlled substances. We were pleased that
this proposal was included as section 306 of the committee's
discussion draft.
Finally, the administration proposal includes provisions
that would improve the lives of Coast Guard members by
protecting leave that would otherwise be forfeited due to the
operational demands of natural disasters, by making permanent
Coast Guard housing authorities, and by allowing for
reimbursement of certain medical-related expenses. Such
provisions are extremely important because they allow members
to focus on mission execution, rather than on quality-of-life
distractions.
Mr. Chairman, Representative Filner, members of the
subcommittee, thank you again for the opportunity to appear
before you today, and I will happy to answer any questions.
Mr. LoBiondo. Thank you, Admiral.
Mr. Filner.
Mr. Filner. Thank you, Mr. Chairman. Thank you, Admiral. I
just want to ask a few questions that were not covered in your
oral testimony. As I understand the maritime identification
credentials program that was in the Federal Register earlier
this year, port workers and sailors needing unescorted access
to secure port areas are required to undergo name-based
background checks against a terrorist watch list and an
immigration status check to receive a credential until this
TWIC program will finally be implemented.
Now, where I live in San Diego, and other places, we are
told that truck drivers, who make up one of the largest segment
of port workers, are not being covered practically by this
requirement. Is that true, and what is the rationale for that?
There was an ABC news report recently that showed people in New
York-New Jersey Port had fraudulent licenses, many of them
undocumented drivers. So what are the facts of the matter from
your perspective with this situation?
Admiral Baumgartner. Thank you for that question. I
appreciate the opportunity to address that. The long-range
solution is the TWIC, the Transportation Workers Identification
Card, and that will apply broadly and that will be the standard
for access. The notice that we have put in the Federal Register
about acceptable credentials for port access is an interim
step, and, as such, it is targeted at what we can do
efficiently and effectively until TWIC comes on line.
So we have examined first those that have the most contact
with port facilities, that have the most information, the most
inside knowledge of the comings and goings of those important
port facilities. Those are the workers that are there most
often and that have the knowledge and access of that particular
facility. They are also, from a practical, pragmatic sense,
those are the easiest workers to be able to screen and to
regulate access through this interim process.
So that is why we started with those particular workers.
They have the most ability to affect the security--
Mr. Filner. I take that as a yes to my question. We are not
looking at the truck drivers, then, by and large. I mean, you
had a real long answer there, but I think you said we are not
looking at those guys right now.
Admiral Baumgartner. Today the truck driver that comes on
occasionally to a facility would not have the additional
screening under the current situation.
Mr. Filner. If you cannot do that, how are you going to do
the fingerprint-based background checks when TWIC is
implemented? That is, why is that going to be any easier than
what you have now? And meanwhile our ports are pretty
unsecured, it seems to me, if we are not checking these
thousands and thousands of truck drivers.
Admiral Baumgartner. Well, when TWIC is in place, it will
be able to expand more easily in a measured way to additional
categories of employees and people that need unescorted access
to facilities.
Mr. Filner. Well, whatever the interim period is--and we
know, by the way, in all of these situations--again, I
represent a border city so I know that all of the programs that
were supposed to be implemented in 2002, 2003, 2004, 2005 have
never been implemented. So this interim may be a very long
time, for all we know, given the complexities of these security
checks. So your answer does not leave me too confident about
what is going on at our ports if people with phony driver's
licenses or undocumented persons can get access to the ports.
It really worries me.
I think you better figure out a way--this interim period
may be longer than you think, because the TWIC situation may be
more complex, and we have had in every similar situation--these
Department of Homeland Security's exit visas, their passports
situation--everything has been delayed and delayed and delayed
because of the difficulty of it being implemented. So I would
look at that again if I were you.
Just quickly, I understand that the administration has
requested legal authority to use funds from the oil spill
liability trust fund to pay for other things such as on-site
scientific or technical support services. How is that going to
help people who have been injured or suffered losses from an
oil spill?
Admiral Baumgartner. Yes, sir. Actually this will help
people that have been affected, because one of the provisions
that you did not mention there are on-site contracting
services. So when you have a major oil spill where there are a
lot of third parties interested who have been affected and
impacted--one of our major problems right now is that when the
responsible party can no longer--or refuses to take care of
third-party claims, those innocent people that have been
damaged, we could have a flood of claims and our permanent
staffing is not able to keep up with the influx of claims and
it creates delays.
If we have this flexibility for those unusual and
infrequent occasions when we have to set up such on-site claims
adjudication facilities, we will be able to do that and we will
be able to consider those claims and pay them much, much
quicker than without this authority.
Mr. Filner. Well, I hope that there is, as you say, because
it seems strange to make an argument that you will help people
more when you have decreased the funds available for them. And
your argument is based on the fact that there are certain ones
that require this expert adjudication. Is that summing up your
argument?
Admiral Baumgartner. Not exactly, sir. What it is, it is a
matter of capacity. If we maintained a permanent capacity that
could handle the third-party claims from a large spill where a
responsible party was not going to adjudicate the claims
themselves, that would be a tremendous resource drain that
would not be available for many many things.
What this provision does when we have those exceptional
circumstances, we need immediate surge response to get these
claims reviewed and paid. We are able to get that kind of
assistance, contract assistance in place and on site where the
people are, and we can do it quickly and we can do it promptly.
It is much better for us to be able to give the settlements to
those people when they need them rather than, because of
bureaucratic delays and inadequate permanent staffing, to have
to adjudicate them from afar and have the large delay.
Mr. Filner. Well, I hope you are right. I hope you will
give us a sense after a year just what the situation was there.
Admiral Baumgartner. Yes, sir.
Mr. Filner. Thank you.
Mr. LoBiondo. Mr. Diaz-Balart, do you have any questions?
Mr. Diaz-Balart. Thank you, Mr. Chairman. I would be remiss
if I didn't bring up two issues. One is thanking the Coast
Guard. I represent southern Florida and I think it is probably
where you are busier, busiest in the country. And it is
incredible to see what the Coast Guard after 9/11, particularly
on these new responsibilities that you are doing, and yet you
are still doing the traditional things you have always done.
And Mr. Chairman, as you all know, they do it with incredible
dignity, with incredible respect, and, frankly, just do a
spectacular job. So I want to thank you for that.
Mr. Chairman, I also want to kind of add to what my dear
friend and colleague, Ms. Brown of Florida, said. I also want
to thank you for that provision--that wage penalty provision in
the bill. I think it is sensible. I think it brings about some
common sense to an area that has not been looked at, frankly,
for probably over 100 years. I want to thank Ms. Brown for
bringing that issue up. It is common sense. It affects not only
a huge industry in the State of Florida, but thousands and
thousands of people who are employed by that. So I just want to
thank you, Mr. Chairman for including that as well. Thank you.
Mr. LoBiondo. Thank you. Mr. Oberstar.
Mr. Oberstar. Admiral, thank you very much for your
presentation. I join my colleagues in expressing, as I have
done on so many occasions, my great admiration for our Coast
Guard and the extraordinary service you render for our country.
Admiral Baumgartner. Thank you.
Mr. Oberstar. As a previous Commandant of the Coast Guard
many years ago said, it takes a very special person to wear
this color blue; and I agree.
Admiral Baumgartner. Thank you, sir.
Mr. Oberstar. And the Coast Guard, I don't know what the
weather channel would do without the Coast Guard, or perhaps
what the Coast Guard would do without the weather channel. You
really are the darling of the network. And they bring into
homes across America the extraordinary service of the Coast
Guard under extreme circumstances and the heroics that are
carried out that these videos literally make seem routine. And
we know that they are not.
In the immediate aftermath, 6 weeks or so after Hurricane
Katrina, members of our committee traveled through the Gulf
States and finished in Mobile with a look at the Coast Guard
facilities and a chance to look at one of those helicopters up
close that I have been voting on for years and years. I see the
remarkable technology of how you winch these people up from the
depths of the roiling seas. I have just great admiration for
your accomplishments.
The Active-Duty strength of the Coast Guard is listed at
45,500. Is that being met?
Admiral Baumgartner. No, sir. I believe we are underneath
that. That is our authorized limit.
Mr. Oberstar. How far underneath that?
Admiral Baumgartner. Actually, sir, I don't have the number
right in front of me, but we can get back to you with that.
Mr. Oberstar. It is not thousands, is it?
Admiral Baumgartner. I think it is probably a few thousand
less than that.
Mr. Oberstar. My first term in Congress, the authorized
strength of the Coast Guard was 39,000. Since that time
Congress has assigned to the Coast Guard 27 new duties and
responsibilities that range from drug interdiction to illegal
immigrant interdiction and others that we all know and need not
go through. You carried out all these duties with this
relatively modest increase in personnel. That is an exceptional
productivity record. And we ought not to tolerate a situation
in which the Coast Guard continues to have new responsibilities
but does not have the personnel necessary to carry them out.
And I am curious as to whether the deficiency in personnel is
due to lack of appropriations or to other purposes.
Admiral Baumgartner. Yes, sir, I appreciate the question.
And certainly one of the reasons that we have been able to
continue to be successful is our multimission character. So
when you add those 27 new missions and you have got the capable
platforms, trained people, the right culture, that is how we
are able to do that.
With regard to the exact delta between what we are
authorized and what we currently have on the books, sir, I do
not have that information and a good explanation, but I
certainly would get back to you with that.
Mr. Oberstar. When you do that, would you please also
provide the ratio of the enlisted to the officer personnel in
the Coast Guard?
Admiral Baumgartner. Yes, sir. We can certainly do that.
Mr. Oberstar. I have a feeling that it was a smaller number
of officers and a higher number of enlisted personnel. I have
to go back to my files to check that back in 1975, 1976. But I
suspect there have been a number of structural changes over
time that just crept in.
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Mr. Oberstar. There is other curious reference in the
pending bill, section 408, data: In each of fiscal years 2007,
2008, there is authorized to be appropriated to the
Administrator of the Economic Development Administration $7
million to acquire through the use of unmanned aerial vehicles,
data to improve the management of natural disasters and the
safety of marina aviation, transportation. Could you enlighten
us to what that is about? I am curious about this increase in
authorization to EDA of $7 million. It does not come out of the
Coast Guard budget as I read it.
Admiral Baumgartner. Well, sir, that is a provision that
has been added in the subcommittee's discussion draft and it is
one that we in the administration are looking at right now. And
we really have not developed a position and I cannot really
give you a whole lot of information on that particular
provision.
Mr. Oberstar. What kind of data would be gathered to
improve management of natural disasters through unmanned aerial
vehicles? Would these be similar to the weather aircraft that
now fly into the eye of the storm, those that go above--as high
as 70,000 feet?
Admiral Baumgartner. Sir, I do not think that is what they
are talking about. We have some other programs that are looking
at the use of unmanned aerial vehicles in different scenarios
and so forth, and frankly I do not really know how this
particular provision ties into those other existing programs.
Mr. Oberstar. I would appreciate any information you can
provide us between now and markup on this rather curious
provision.
Admiral Baumgartner. Yes, sir. We will do that and we will
get back to you on that.
Mr. Oberstar. Thank you very much.
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Mr. LoBiondo. Mr. Coble.
Mr. Coble. Thank you, Mr. Chairman. I apologize for my
belated arrival. I had an earlier meeting and I have a
subsequent meeting soon, so I will not be able to stay long.
Admiral, good to have you with us. I want to reiterate what
my friend from Minnesota said when he extended his generous
comments to the U.S. Coast Guard. It does indeed take, Mr.
Oberstar, a special breed of cat to wear that Coast Guard blue.
Admiral, the draft bill retains the same level of Active-
Duty personnel as was authorized in the fiscal year 2006 bill.
How does the Coast Guard plan to be able to meet its increasing
mission goals--and, by the way, these increased mission goals
imposed upon the Coast Guard appear to be endless, but you all
somehow manage to keep responding without increasing your
number of personnel. Do you have a magic wand with which you
operate there? I know Admiral Allen handles the apparatus, but
I would be curious to know about this.
Admiral Baumgartner. Yes, sir; if he has a magic wand, I
haven't seen it yet.
Mr. Coble. I think someone has a magic wand down there.
Admiral Baumgartner. I think if there is a metaphorical
magic wand, as I said, I think that the key is our multimission
character. When you have personnel with the authorities that
have the training and the right culture, that goes a long way
towards it.
In terms of how we are looking to fulfill our commitments
in the future, I think that certainly Admiral Allen has put it
well when he testified here last week and in his change of
command statement: We are looking at getting the right people,
the right platforms. Deepwater is a large portion of that.
Getting the right platforms in place with the right technology,
the right sensors, the right systems integration so that we can
work more effectively as a total system; then we do not need as
many people and we can leverage technology there.
That is certainly one of the reasons we can take on a lot
more than we did when Mr. Oberstar first started his committee
with not that many more people, is that the platforms that we
have are much more efficient in terms of manpower than they
ever were. You simply look at our new cutters, new ice breakers
that are serving with less than half of the crew and much more
capable vessels.
Certainly in other areas, maritime domain awareness, where
we are trying to leverage technology and intelligence to
provide a common operating picture that gets us more knowledge
about the environment we are operating in, rather than more
people and more brute strength. So in many ways, as as I said,
we are trying to work smarter.
We are also working much better with our interagency
colleagues in terms of within DHS, with DOJ, with DOD and the
rest of the Federal agencies. We can certainly leverage our
people, our authorities, and our capabilities much better than
we used to be able to do.
Mr. Coble. I thank you, Admiral. What is the overall
enlisted and officer strength now?
Admiral Baumgartner. Unfortunately, sir, I do not have that
exact number in front of me but we can provide it to you.
Mr. Coble. Mr. Chairman, I would like to have that
information imminently, if we could.
Admiral Baumgartner. Yes, sir. It is around 40- to 41,000,
I believe, but I do not have the exact number.
Mr. Coble. Total.
Admiral Baumgartner. I believe it is around there, but we
will get that number to you.
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Mr. Coble. Thank you, Admiral. Thank you, Mr. Chairman.
Mr. LoBiondo. Mr. Taylor.
Mr. Taylor. Thank you, Mr. Chairman.
Admiral, from a quick look, this bill appears to have been
written by a lobbyist here in D.C. Rather than the Coast Guard.
Let's start with 307. I worked very hard to put that
language in the bill that would trace back who actually owns
the vessel, so that folks, like neighbors in particular, would
not portend to be an American-owned vessel when they are
actually owned by a French firm. That French firm actually
brags about operations in the Gulf of Mexico in their business
brochure, so there should not be any doubt that the French guys
don't know that they own this company, and there should not be
any doubt to you that they own this company, and that is in
violation of the Jones Act. So I would very much object to that
and I would be curious where that language came from.
But let me just walk down. 309. Why would our Coast Guard
want to accept the measurements of any other State? As we know,
there are some countries around the world where you can get a
master's license just by showing up and paying a fee. My hunch
is you could probably get a tonnage the same way. So why would
we sign off on those inaccuracies? I am curious to hear your
explanation on 310. I am willing to hear you out on that one.
On 403 for years, if I am not mistaken, there has been a
car dealership out of the State of Florida that kind of wants
the best of both worlds. If their vessel were to catch on fire
or if it were to sink, they want the right to call the United
States Coast Guard. And yet, after being told on this issue for
something in the neighborhood of 15 years that the Jones Act is
reserved for American-built vessels, if I am not mistaken, the
same folks keep insisting on buying a number now of foreign
yachts, which is contrary to the Jones Act. It is not like
these guys do not know the rules. This has been an issue since
the Democrats controlled the House, and that was a very long
time ago. So I would like you to explain that one.
Tell me about 404. Jones Act waivers are not an end-all. It
is sort of like those of us who used to be a city councilman.
It is sort of like granting a variance. Every time you give one
waiver, there are ten more guys who want a waiver. So once you
do that, why have a Jones Act at all? I think the Jones Act
exists for a very good purpose. It is there to protect our
citizens, and so I have a little trouble with 404 and 405
granting those waivers.
That ought to get you started. And while you are talking, I
will be reading the rest of this. But this surely does not look
like something that was put together for the benefit of the
American citizen. On a very quick glance, it looks like
something that made K Street a lot of money, and I will let you
tell me that I am wrong.
Admiral Baumgartner. Yes, sir. Actually, most of those
provisions in the discussion draft is not a bill that is put
forth by the administration. We did come forth with a proposal
that many of the provisions are contained in the discussion
draft. The particular provisions that, I think most of the ones
that you mentioned there, were not ones in the administration
proposal and the discussion draft from the committee the
administration is looking at and developing positions on the
different provisions; but I don't have positions to discuss the
specifics of most of the things you asked. One thing I can
discuss--
Mr. Taylor. Excuse me, sir. Let's go back to 307. This
committee made a mistake, and I cannot even remember how I
voted, so I will presume I have voted for it. This committee
made a mistake when we allowed foreign financing of American
flag vessels. And the reason for that is for those of you who
do not have a documented vessel, you look on the back of that
documentation paper, and if you have a lien against that vessel
it is written on the back. That is who really owns it. And so
for the while that the Hancock Bank had my note, they were the
real owners of the boat, not me. So thank goodness since then
that note has been paid off, so it is really my vessel. But in
the foreign financing, we actually had an offshore supply boat
company that built some boats here, and that is great. But on
the back of that paper, on the documentation they listed a
French firm as that owning the boats. So here they were,
getting the best of the both worlds. They were operating in the
Gulf of Mexico. If they caught on fire or started to sink, they
call on the Coast Guard 24 hours a day, 7 days a week, 365 days
a year. But by a very clever financing scheme, the American
firm would see to it that they never made any money; that all
the profits were passed on to the folks who held the paper over
in France. So they did not pay American taxes because they did
not make money. They paid the company over in France a pretty
good chunk of money. They made money, but because the French
company was making money in the Gulf of Mexico and since most
countries do not tax overseas income, no one paid taxes. So the
benefit of the United States Coast Guard was made available to
this firm for free.
That is wrong. It is in complete contradiction to the Jones
Act. We want to know the folks that operate in our waters are
American owned, American built, American crew. So we are
closing that door.
And again, my question to you is, you felt like--and when I
say "you," I mean the Coast Guard--that you were under
resourced to enforce that in the past; that you did not have
clear and compelling language to enforce that. Is that still
the case? Do you feel like you are under resourced to enforce
that so that we know that these vessels are American owned, and
do you have the resources both legally and financially to make
that happen?
Admiral Baumgartner. Congressman, I think the most
important thing along those lines was the change in the
substantive lease financing law. And if we had, in terms of the
leased financing vessels, we have mortgage financing and leased
financing, the changes that were made there that clarified what
the rules were so that we could easily and fairly enforce them.
That was, as you know, that was the important item there. With
the mortgage-financed vessels, substantive rules are sometimes
the most important ones because there are ways for clever
people to get around them. Reporting requirements and giving us
a better ability to inquire and ask reports of vessel owners is
helpful--I am sorry, of mortgage companies--and so forth to
find out what is really going on and what the business
relationships are.
But it has been a difficult thing for us to try to
investigate a large number of transactions, and many times what
our process is, is we look at the documents and if we do not
see problems with them, then that is the best way. The document
process proceeds from there.
There are exceptions, and certainly there are the ones that
you mentioned there with those particular vessels. So the
ability to ask for more information and get more information
and find out what the details are is certainly helpful. There
is also the problem of when they come forward and they have
information or provide information that appears to meet the
requirement of the regs and the statutes. We may end up in a
situation where people think they know what is going on behind
the scenes, but there isn't any real way to prove that.
In terms of one of the other things you mentioned, tonnage
is one of the provisions that I can speak to because that is
part of our proposal here. And we had significant tonnage
amendments that we would like to go through. And you mentioned
our acceptance of foreign tonnage measurements and so forth.
That is part of the backbone of current commerce right now,
maritime commerce, is the regime of international conventions
and standards, and the classification societies that act as
independent inspectors and guarantors of those different
things.
So if a vessel has been measured under the rules of a
foreign country, they will also have been inspected by
classification societies. And so, therefore, the results of
those measurements, we will recognize those. I do not see any
significant problems there. And those are part of our
reciprocal obligations under the international conventions.
Mr. Taylor. For clarification, your language requires that
it be backed up by one of the measuring society's--let me give
you a for instance that jumps out at me. You take a less-than-
well-organized Third-World country. You take a very large
vessel. You pay off the right guy. It is now a 50-ton vessel.
Anybody with a couple weekends on a boat who goes and attends
their course can get a 50-ton vessel. It doesn't take a whole
lot. So you could have a 400- or 500-foot ship that some nation
says is a 50-ton vessel, you hire some guy who doesn't have the
experience to be operating a 400-foot ship but, under these
changes, when I first look at them, you actually created a
safety problem.
Now, again, tell me that that won't happen.
Admiral Baumgartner. Well, Congressman, I can't guarantee
that that won't happen, but I think that the likelihood that
something of that egregious happening is not significant and
that the registries that issue the certificates and so forth
have a lot at stake in maintaining their credibility.
We do have a port--
Mr. Taylor. Going back to my question, are you tying it to
those registries? A brief summary doesn't say that.
Admiral Baumgartner. The law doesn't tie--the statute
wouldn't specifically require a classification society to have
been involved, but that is the normal process. What we do do
is, in our port state control boardings, is we track the
compliance of vessels by nationality, by registry. So if a
particular nation has substandard vessels and does not have
good inspection processes, they do have things like, as you
were suggesting here, that appear to be blatantly inaccurate
items, we would challenge those. It would then be noted in the
port state control process, and the vessels of that nation
would be targeted for increased numbers of boardings.
Now the businesses that register their vessels under that
particular nation's registry don't like that, and they put
pressure on that nation or that country to increase the overall
quality of their vessels so they aren't targeted, and that
actually works pretty well. We just received word from a major
flag state in the last week that they decertified some of their
vessels because they weren't up to snuff, and they did not want
to see their scores in our Port Security Control boarding
regime, our matrix, to lift them up into another category that
would subject other vessels of their nationality to a higher
frequency of inspections and a higher intrusiveness of
inspections when they called on U.S. Ports.
I am confident that that won't be a problem on a systematic
basis and that we have enough disincentives built into the
system to keep everyone honest.
Mr. Taylor. For the record, I would like someone from your
office to come tell me about Section 405.
Admiral Baumgartner. Yes, sir.
Mr. Taylor. Mr. Chairman, you have been very generous.
Mr. LoBiondo. Admiral, Section 206 would establish a civil
penalty offense for simple possession of narcotics on a vessel
or in a facility. What facilities would be included in this
definition?
Admiral Baumgartner. Thank you, Mr. Chairman.
Facilities there would be broader than simply facilities
that are specifically regulated under the Maritime
Transportation Security Act regulations. So we would mean here
the facility could include a marina. So that if we were
followed or we were boarding vessels in a marina and had some
particular purpose to be at that marina and there happened to
be a personal use situation at the marina, we would be able to
take action.
If it was a more limited definition of facility and only
applied to facilities that were regulated under Section 105,
that type of marina wouldn't be covered. The only kind of
facilities we would be looking at then would be ones that had
four and five vessels or large passenger vessels.
So this is a much broader meaning. So it would encompass
the smaller facilities like marinas and so forth where we may
still encounter personal use issues and scenarios.
Mr. LoBiondo. Since there is already a criminal statute in
the law, what is the need for this proposal?
Admiral Baumgartner. Well, this proposal gives us a very
good tool to cover a gap in the current practical enforcement
scheme; and there are a couple of different places where that
comes in to play.
One is there are certain areas where State law and local
laws don't apply. That might be from 3 to 12 miles in our
territorial seas and on a high-seas vessel subject to U.S.
Jurisdiction. In those cases, if we were going to take criminal
enforcement action for personal use quantities, we would have
to prosecute them in U.S. Federal court.
Resource and other efficiency constraints there have caused
the Department of Justice as well as State and local law
enforcement and prosecutors to develop different thresholds
over what type of a case merits the commitment of resources for
a criminal prosecution. So sometimes we find ourselves in a
situation where it isn't best or efficient for the prosecutor
in that area to go forth with a criminal prosecution for a
simple possession case, and what that does is that leaves our
young Coast Guardsmen and women in a situation where they find
people in possession of unlawful drugs on a vessel. They will
confiscate the drugs, of course, but then, without the civil
penalty provision, there may be no consequence.
So the people that they have found in possession or perhaps
even using the substances, there isn't a practical consequence.
It technically is a violation of the criminal law, but it is
not a practical item that--it may not be a practical case for a
prosecutor to take.
This civil penalty provision is a streamlined, efficient
way of attaching consequences to possession in those particular
circumstances.
Mr. LoBiondo. Switching to deepwater, what annual level of
funding would be required to complete deepwater within 15
years?
Admiral Baumgartner. Well, sir, it would certainly take
more than what we have right now in the current budgets. That
is a question that is under study, and I think you know H.R.
889 would require a report on that. I think that, in
anticipation of that, we do have people who are looking and
providing those numbers, but I don't have numbers that I can
provide for you here today for you, sir.
Mr. LoBiondo. Thank you, Admiral.
We will now move to the second panel. Oh--Ms. Brown.
Ms. Brown. I guess my first one, when you get the
information ready for Mr. Oberstar on the composition and the
numbers, would you also give that to me? And I am interested in
minorities and women and females.
My other question, as you develop credentialing programs
for, I guess, the longshoremen and for the truckers, I am very
interested in--you know, Florida has some program that they
don't have to go to each port to get a different credential and
pay a different fee, some kind of uniform program. But I am
also interested in, as you come up with some of the--I want to
say very sensitive, some have checkered pasts, but they served
their time. They paid their dues. I don't want to see people
squeezed out of jobs because of some program that we come up
with that is not related to September the 11th.
So can you tell me a little about how you plan on
formulating the program? I understand you have something in the
Federal Register.
Admiral Baumgartner. Yes, ma'am. There are a couple of
things there.
First, what I would do is turn to the transportation worker
identification card, the long-term vehicle for that; and we are
working with the Transportation Security Administration on the
particulars of that particular program. There is a notice of
proposed rulemaking that was issued last month, and we have had
four hearings held so far with over a thousand attendees. So
there has been a significant amount of public interest and
comment. That particular card would be a national card so that
it wouldn't require--it wouldn't be port specific, and it would
allow you to go where you need to go.
It also--in the notice of proposed rulemaking, it does set
forth what the different criteria are for, I guess, security
issues or where you might be denied a card. And it is focused
on security issues. It is not focused on merely the fact that
someone got in trouble and had a criminal record. So it is very
clear in there that it is looking at things that would cause a
security concern.
And that sort of leads me to an important aspect of this
whole program, is that the trick and the interim procedure that
we did put forth in the Federal Register last month, those are
both compliments to the facility's security plans which are in
place right now under the Maritime Transportation Security Act
regulations. Those particular plans require the facility
operators to outline how they are going to control access to
their facilities.
And I may have given a misleading impression that right now
that a trucker could go on any of those facilities because they
aren't covered by a process. That is not accurate. What our
interim process does, it says, in addition to what the facility
does to screen escorts--or they may have surveillance or other
ways they keep track of truckers or other employees on that
facility. In addition to that, we are saying that they must, at
a minimum, fulfill this other interim credential core
requirement; and that requires us to screen those permanent
workers and people who have frequent access to that facility.
That is above and beyond the requirements that are laid on that
facility and that are reflected in that security plan, and
those are plans that are all reviewed and approved by the Coast
Guard. So there are significant access controls.
Ms. Brown. Couple of other questions.
Coming from Florida--and, of course, various places around
the country have these gambling ships that--that they are not--
they don't actually move into the waters. They are just
stationary. And a lot of the States want you all to inspect
these ships or facilities. What is the Coast Guard's position
regarding inspecting vessels that are permanently attached to
the shores and would the Coast Guard continue to inspect
vessels that are not permanently attached to the shores?
Admiral Baumgartner. Well, that is a good question; and
there are many parts of that. We did put out a proposed policy
to address different vessels. At that point in time, we called
them permanently moored vessels. That is not a technically
legal correct term anymore. That policy received a lot of
comment and, right now, it is being reviewed as to what exactly
we are going to do with those particular vessels.
Another thing we are reviewing right now is the impact of
some court decisions that define what the term "vessel" means,
particularly for vessels that are permanently attached to the
shoreline or to the seabed; and we are looking at all of those
things right now to see what the best course is for the future.
Some of that is not necessarily all in our hands because of
the interpretations the Supreme Court has made, and there are
other courts that are looking at this as well. So we are
reviewing all of these particular items to figure out what is
the best policy as we go forward. But we do realize if we don't
inspect vessels as--inspect these structures or crafts as
vessels, then the State or local jurisdictions will then look
to inspect them under their particular laws and codes.
Ms. Brown. Thank you, Mr. Chairman. I yield back my time.
Mr. LoBiondo. Thank you, Admiral.
Mr. LoBiondo. We will move now to the second panel.
All right. Thank you, gentlemen.
We have Professor Myron H. Nordquist with the Center for
Oceans Law and Policy of the University of Virginia School of
Law; and Mr. Douglas B. Stevenson, Director for the Center of
Seafarers Rights of the Seamen's Church Institute of New York
City and New Jersey.
TESTIMONY OF PROFESSOR MYRON H. NORDQUIST, CENTER FOR OCEANS
LAW AND POLICY, UNIVERSITY OF VIRGINIA SCHOOL OF LAW; AND
DOUGLAS B. STEVENSON, DIRECTOR, CENTER FOR SEAFARERS' RIGHTS OF
SEAMEN'S CHURCH INSTITUTE OF NEW YORK AND NEW JERSEY
Mr. LoBiondo. Professor Nordquist, would you please
proceed?
Mr. Nordquist. Thank you, Mr. Chairman--
Mr. LoBiondo. Could you please turn on your mike?
Mr. Nordquist. Thank you, Mr. Chairman and other members.
My name is Myron Nordquist, and I am the Associate Director
at the Center for Oceans Law and Policy at the University of
Virginia School of Law.
Two weeks ago, I was called by the International Counsel of
Cruise Lines and asked for independent views on proposed
amendments to the wage penalty provisions in existing law. I
make no pretense at being an expert on labor law. Rather, my
experience is in broader international maritime law and in
analyzing legal provisions. In any event, I was subsequently
invited by this Subcommittee to testify today.
My overall reaction then and now is that the existing law
pertaining to penalty wage provisions, while historically
understandable, is out of date. I respectfully submit that the
proposed amendments provided by the subcommittee genuinely
promote a better and more equitable maritime policy for
passenger vessel seamen, many of whom on cruise ships today are
more akin to hotel or restaurant employees. I also believe that
it is more equitable for masters, owners, operators, and
employers.
Moreover, as elaborated in my written testimony, my view is
that the proposed amendments reflect sound public policy that
ought to be incorporated into updated chapters of Title 46 of
the U.S. Code. The penalty wage provision in the proposed
amendments, in my view, incorporate evenhanded due process
procedures for all concerned. If these due process procedures
are added, Congress will advance a major step in the direction
of circumscribing and promoting a fair, early settlement of
seamen wage disputes. Due process to me means fundamental
fairness in how the law is applied to everyone.
In response to several of the members' inquiries, I would
like to stress that the proposals do not change the wage
penalty law itself. They only relate to the timing before it
kicks in.
The proposed amendments contain a more rational procedure
whereby a seaman is to provide written notice of his wage
claim, and the master, owner, operator or employer then has an
opportunity to remedy the dispute. The amount in question must
be paid either immediately then to the seaman or deposited in a
fiduciary account while the dispute is resolved. The penalty is
assessed if the payer does not follow the clearly outlined
procedures.
It is not accurate to argue that the existing wage penalty
is only imposed for willful misconduct, as no finding was made,
for example, in the leading Supreme Court case of Griffin vs.
Oceanic Contractors, Inc. There, the U.S. Supreme court
affirmed a judgment of over $300,000 for a $400 wage dispute.
The decision held that the district courts lacked discretion to
vary the period of the penalty, and Congress was challenged to
rectify the obvious deficiency in the judgment.
Further, the allegation that the owners are attempting to
avoid customary maintenance and cure obligations via the
proposed amendment is just plain wrong.
I urge the subcommittee to lay this "red herring" to rest
by inserting appropriate language wherever it is needed to
provide the clarification.
What puzzles me is why there is such passionate resistance
to due process procedures that are commonplace throughout all
of American law. The proposed amendments will facilitate the
prompt payment of seamen wages. The proposed amendments do at
long last treat seamen as responsible adults.
The repeated use of the adjective "unscrupulous" for
passenger vessel operators, which is contained six times in six
paragraphs on page 5 of Mr. Stevenson's written testimony, is
really unconstructive for a resolution.
Seamen also have their share of moral shortcomings.
Emotional calls for collective punishment for all shipowners to
reach a few bad actors is plainly unfair and, in my view, a
violation of due process of law.
My last point is that a statute of limitations ought to be
measured from an objective date, such as when the alleged
dispute arises, not from some subjective time based on a seaman
or anybody else's knowledge.
The purpose of the statute of limitations in all cases is
to bring an end to stale claims and promote timely
administration of justice. The current wage penalty provisions
stand legal rationale on its head by actually providing
incentives to delay the settling of seamen disputes.
In conclusion, my view is that the proposed amendments are
long overdue and, in modern society, not all seamen are hapless
fools and not all passenger vessel owners are unscrupulous. The
due process requirements of notice and opportunity to remedy
disputes and the proposed amendments strike me as being fair
and evenhanded to all concerned. I believe they are good public
policy and ought to be enacted.
Mr. LoBiondo. Thank you, Professor.
Mr. Stevenson.
Mr. Stevenson. Thank you, Mr. Chairman and subcommittee
members.
I am very pleased to be here today at the subcommittee's
invitation to testify on the United States Penalty Wage Act.
Just to begin with, I might want to respond to one of the
questions about my use of "unscrupulous" passenger vessel
operator. I use that because the Act could allow unscrupulous
ship operators to do certain things and would allow the
responsible scrupulous passenger vessel operators to
differentiate themselves from the unscrupulous ones.
But, Mr. Chairman, there is no law that better expresses
what America stands for and that confirms American values than
the United States Penalty Wage Act. This law was enacted by the
first Congress of the United States, the same Congress that
started the U.S. Coast Guard, the predecessor agency U.S. Coast
Guard; and, like the Coast Guard, this law has served the
United States well. It has served seafarers well; and the
statute simply requires, very simply, that shipowners should
pay seafarers on time and accurately.
The Act is purposely simple: to encourage quick payment of
wages without the need for lengthy procedures or judicial
interpretation. The Act attempts to deter unscrupulous
shipowners from arbitrarily and unscrupulously withholding
seafarers' wages by imposing a 2-day penalty for each day that
wage payments are delayed.
It is clear from court decisions that responsible
shipowners have nothing to fear from the Penalty Wage Act
because the Act makes clear and the court decisions make clear
that penalty wages do not apply every time a seafarer's wages
are not paid on time. Only when the failure is without
sufficient cause is a seafarer entitled to penalty wages.
Without sufficient cause means that conduct which is in
some sense arbitrary and willful. As one court has said,
penalty wages are appropriate only when the employer has acted
in a dishonest or very highhanded way.
Mr. Chairman, the special projections accorded to merchant
mariners by the Penalty Wage Act are as relevant and necessary
today as they were in 1790, 1872 and 1898 and 1915. I know from
my own institution, which was heavily involved in the
amendments in 1915, that these protections are as necessary
today as they were then.
The issue is not technology of the vessels. The issue is
rather the disproportional bargaining position, disproportional
bargaining power of a shipowner compared with a seafarer and
the intimidation that seafarers have suffered, and that has not
changed since 1915 or 1790.
This situation was brought upon by some cruise vessels who
were sued in court on the Penalty Wage Act claims for Royal
Caribbean, Norweigian Cruise Lines and Carnival Cruise Lines.
In each of the cases you should understand seafarers are
foreign seafarers working on foreign flag vessels working 70
over to a hundred hours a week, and many times it was alleged
that they were not paid their overtime salaries. We should
understand that, what salaries that they were paid, the tip
employees were paid approximately $50 a month; and they are
relying on tips between $1,000 and $3,000 a month for the
remuneration.
But rather than instituting an industry-wide standard to
ensure that seafarers are properly paid, the cruise industry
has responded by asking Congress essentially to amend the
Penalty Wage Act that would essentially repeal the effect of
the Penalty Wage Act on seafarers on cruise vessels.
My comments on the particular provisions are contained in
my paper, but I would suggest that we could look at this
request from this perspective: This cruise industry which
chooses to avoid obligations under U.S. Law by operating their
vessels under foreign flags and employing foreign workers under
Third-World wages is asking Congress to protect them from an
arbitrary and unscrupulous failure to pay their foreign
seafarers on foreign flag vessels the Third-World wages they
work so hard to earn.
I would suggest--if I could have 30 more seconds, Mr.
Chairman. I would suggest that, rather than throwing out over
200 years of vitally important legislation and jurisprudence
protecting all seafarers in the United States ports, I would
respectfully ask that Congress reject the industry proposal;
and the industry should be asked to initiate a proactive
program, as they have done so well in the environmental field,
to change the culture of the cruise industry by putting into
place appropriate record keeping procedures that will
accurately record the hours of work of their crew members and
by establishing a zero tolerance policy against intimidating
crew members who seek only to enjoy their legal entitlements.
The cruise industry did a very good job when they were hit
with a lot of pollution cases in the late 1990s. But instead of
going to Congress and asking Congress to repeal the
environmental laws, they instituted changes within the industry
that are designed to prevent point source pollution from cruise
vessels. The same sort of procedure, the same sort of
initiative could be started by the industry with regard to
seafarers' rights that could be a model for the industry.
I thank you, Mr. Chairman, for the extra minutes.
Mr. LoBiondo. Thank you.
Mr. Filner.
Mr. Filner. Thank you, Mr. Chairman.
Mr. Nordquist, you started off by saying you weren't an
expert in this law. Your testimony certainly confirms that. Do
you know why the people who know this better, like the cruise
line operators and their lobbyists and their attorneys, are not
here instead of you?
Mr. Nordquist. Actually, they are here. If you have
questions, I am certain you are the master of your own forum;
and they could answer them.
Mr. Filner. Could we invite those half-dozen to join us? I
mean, you are getting notes from the guy behind you, who I
think is with the International Council of Cruise Lines, so why
doesn't he come up?
Mr. Nordquist. Mr. Chairman, I am not in charge of
anything.
Mr. Filner. You are just here because somebody told you to
be here, huh?
Mr. Nordquist. No, I am here because I read the proposed
amendments and was invited to testify.
Mr. Filner. Are you getting paid for being here?
Mr. Nordquist. I am certainly getting paid.
Mr. Filner. By who?
Mr. Nordquist. By the cruise industry.
Mr. Filner. Interesting. Thank you.
Mr. Nordquist. I think everybody who appears here is paid
by someone. I got into this because I was asked to provide
independent views. I guess they thought what I said made sense.
Mr. Filner. Well, it didn't make any sense to me. You said
everything all out of date.
Mr. Nordquist. I didn't say that. Those are not my words.
The law--
Mr. Filner. You said the law is out of date.
Mr. Nordquist. Of course--
Mr. Filner. So is protection for overtime out of date?
Protection for when a person gets paid out of date? Are those
things out of date, in your view?
Mr. Nordquist. The proposed amendments are intended
actually to update all those kinds of records.
Mr. Filner. Have you met or interviewed any of the seamen
who have brought the class action lawsuits against the
Norweigian cruise lines so you knew what they were saying? Even
though they worked over a hundred hours a week and weren't paid
overtime, have you talked to any of those guys?
Mr. Nordquist. I am familiar with the kind of allegations
that go into litigation.
Mr. Filner. Do you think that is fair?
Mr. Nordquist. Excuse me?
Mr. Filner. Do you think working over a hundred hours and
not getting overtime is fair?
Mr. Nordquist. The ones that I have talked to, frankly, are
working mostly for tips; and when you tell them that they have
to go back and stop working, it means access to a larger source
of income is cut off from them. I think there is a distortion
in the mind of people that don't understand that most of the
money that many get comes from tips.
Mr. Filner. So you don't agree with the settlement that the
cruise lines had to pay?
Mr. Nordquist. I don't know enough about the facts to give
a judgment. That wasn't really what I was offering testimony
on.
I think we ought to give due process to everybody, and I
think that the Constitution is more fundamental than some law
passed with a few sentences in the First Congress. That is my
position. I guess the cruise industry liked that.
Mr. Filner. I guess.
Thank you for your definition of compassionate
conservatism.
You said in your statement that the amendments don't change
the law, they just refer to the timing of when things come in.
Let me read you a couple of changes that occurred.
Mr. Nordquist. I didn't say that.
Mr. Filner. Yes, you did.
Mr. Nordquist. I said it didn't change the penalties.
Mr. Filner. Let me read to you a couple of things and ask
if you want to stay with that.
The proposed amendment changes the penalty computation from
2-days' wages for each days payment delay to not more than 2
days' wages. Isn't that a change in the penalty?
Mr. Nordquist. And that is an error. It is an error in the
document that I reviewed, and I had to give counsel an
explanation prior to this hearing that that is an error.
Mr. Filner. So what should it say?
Mr. Nordquist. It should say the penalty is the same
whether it is in Chapter 103 or chapter 105.
Mr. Filner. So we have something that was written by the
cruise ship industry in error.
Mr. Nordquist. I am not really able to say where the error
occurred, but certainly what I can say is that the penalty is
intended to remain.
Mr. Filner. That is not what the language says right now.
It also changes, as I understand it, where the burden of
proof is. For example, that the proposed amendment requires a
seaman to prove that his employer did not have sufficient cause
not to pay him. You are shifting the burden of proof there.
Mr. Nordquist. I didn't say that. I don't know where this
is coming from.
Mr. Filner. That is what the amendment says.
Mr. Nordquist. I certainly didn't read it that way.
Mr. Filner. You wouldn't read it as shifting the burden of
proof?
Mr. Nordquist. That is correct. I would not.
I would say that it imposes an obligation, as it exists
almost everywhere else in the law of the land, that a seaman is
to give notice that he wants to be paid what he thinks he is
due. How can you pay a debt you don't know about? That is
common sense.
Mr. Filner. How does an individual person--who may have
language problems, may have other issues, including
intimidation and afraid of not being rehired, that he's
supposed to know why or prove that--he has to prove that there
was cause? Maybe there was a computer error. How does he know
one way or the other? But he has to have cause to bring the
complaint.
Mr. Nordquist. You are mixing up, sir, cause and notice.
Notice is when the man gets his pay stub. He looks at it and
says, wait a minute; I am owed more money than this. Then he
should have a duty to go to whoever it is that issues a
paycheck and say, I am short. I don't think it is a very onus
provision to give notice. Now that doesn't mean he has to prove
it. It simply means he has to give notice.
Mr. Filner. We will have to read that part of it a little
more directly, because I think you are putting the burden of
proof in this amendment back on the individual, as opposed to
the people who ought to have the burden on them.
I will have a second round, Mr. Chairman, if you don't
mind.
Mr. LoBiondo. Ms. Brown.
Ms. Brown. Thank you. I have always supported workers'
rights, and I am a strong supporter of workers' rights, but for
2 years I have looked at some of these provisions, and I really
think they need to be updated.
Some of the things that greatly concern me is, for example,
a worker has to go to Western Union--you know, that mentality--
that Western Union mentality. They have to spend a large
portion of their money wiring the money back home because, in
law, that you have to pay that person in cash, that is
ludicrous.
So that is one provision I know that needs to be updated,
that the cruise ships have to have cash on hand and they have
to pay them in cash. Now do you agree that that is one
provision that needs to be corrected?
Mr. Stevenson. Yes, ma'am. Thank you for that question,
because--I mean, I have direct deposit for my salary.
Ms. Brown. I have direct deposit, too; and when we came up
for the provision for Social Security, it was a difficult task
getting my seniors to understand that that is a good thing. Now
it is, and I don't have to worry about people attacking them
when they go to the bank to cash their checks.
Mr. Stevenson. But, you know, I have been working defending
seafarers for the Seaman's Church Institute for 16 years. We
have a free legal aid program for seafarers worldwide. I have
never in my experience had a seafarer come to me and say, I
want direct deposit. I want allotments made back home. I want
to be able to send home money through electronic means.
A few years ago, the ITF tried to initiate a program where
seafarers would--they have an agreement with all of the
shipping companies to set up a worldwide direct deposit program
with ATM cards and ATM machines at seafarers' centers all over
the world. Seafarers would have nothing to do with it. They
didn't want it at all. They want to be paid cash. They want to
be paid cash.
Because seafarers are coming from a lot of developing
countries--the Philippines, in particular--are very, very
accustomed to abuses in allotments, that things are taken out.
That is why they prefer--and I agree with you. They don't like
going to Western Union. That is why they come to the Seafarer
Union in the New York area, and others who have passenger ship
terminal industries provide a service of wiring money home at a
cheap rate.
Ms. Brown. Could you all take a check? Could you take a
check?
Mr. Stevenson. We would take a check, of course, but they
don't want to be paid that. I can't--
Ms. Brown. I think--
Mr. Stevenson. The other problem with this, though, in the
language of the proposed bill is that it would open the door
for taking out payments for, say, personal medical insurance
for seafarers. This is not a red herring that was suggested
because we have had complaints particularly from what are
called entertainers and hotel staff workers that the cruise
industry is trying to exclude from the definition of seafarers,
that they are as much a seafarer on a cruise vessel, on the
mission of a cruise ship, as a tanker man is on a tanker.
But we have had complaints that they have been required as
a condition of employment through their recruiting agency to
show that they have personal medical insurance. It is not
against the law for someone to have their own medical
insurance, but if you can set up a system where money is being
taken out of your pay for medical insurance and you are told
you must voluntarily agree to this as a condition of
employment, then the shipowner has reduced expenses for medical
care and it is something that we are very concerned about.
Ms. Brown. The other provision that I want--I have brief
time and we can discuss this as this moves forward, but I have
a concern about--the only issue that I am concerned about is
that I think that the workers should notify the employer if
they have a problem. If I have a problem with my check, I am
going to let you know the day that I have a problem, the moment
that I have a problem. There will be no confusion if there--if
my check isn't right, I am going to let you know.
Mr. Stevenson. I think that is something that land-based
workers have a very good understanding about. The difference,
however, is when you are dealing with a disproportionate
strength in bargaining power between a seafarer, let us say
coming from the Philippines, working as--and most of them do,
28 percent of the world seafarers are from the Philippines.
They know for every job that is offered there is 200 people
behind them. They know if they are labeled a troublemaker they
lose their job and they are not rehired.
Ms. Brown. I don't think it is being a troublemaker if it
is a problem with your money.
Mr. Stevenson. I don't either. But, unfortunately, what
they experience is we have had many, many, many, many cases of
seafarers who have been dismissed from their employment who
have been retaliated against simply--and blacklisted from
future employment by the system of recruiting agencies in the
Philippines simply for requesting what they are legally
entitled to have.
Ms. Brown. And I think we should work with this, but I
think there should be some way to modernize this, that it
should be fair on each side.
Mr. Stevenson. And I think so, too, Congresswoman.
I think what I suggested is that the first step ought to be
that the industry itself, which is in the best position to know
whether or not a person is properly paid, should set up a
system so they know exactly how much that seafarer is being
paid. They keep track of the hours. They can keep track of
every drink that a passenger drinks. They can keep track.
Ms. Brown. You don't think they are doing that?
Mr. Stevenson. No.
Ms. Brown. Do you think they pay people--that they don't
know how much they are paying them?
Mr. Stevenson. If you look at the allegations in the class-
action suits, there are many allegations--and I think
affidavits could be provided--where the shipping company could
not verify the hours worked.
Ms. Brown. I don't know how that could possibly happen,
but, as we move forward, the industry, as it moves forward,
maybe there are some recommendations that you could make that
would be helpful to them. But I think you should look at some
of their proposals; and I really have a concern about, you
know, the Western Union provisions.
Mr. Stevenson. I am very happy to work with you, with the
industry, with anybody, if it is going to help seafarers.
Ms. Brown. Thank you, Mr. Chairman; and thank you, Mr.
Ranking Member.
Mr. LoBiondo. Mr. Taylor.
Mr. Taylor. Thank you, Mr. Chairman.
Mr. Chairman, more of an observation, I welcome the
thoughts of both of these gentlemen. In the wake of Hurricane
Katrina, our Nation at considerable taxpayer expense hired
several cruise ships, one of which went to Pascagoula,
Mississippi, went to Mobile, at least one went to New Orleans.
And since all of us, hopefully, are here to look out for our
constituents, one of the things I find troubling, I hope we can
address in this, is, you know, a foreign ship is, in effect, an
island. It is a little bit of sovereignty of whose flag it
flies and lives under those rules.
That may be fine for a ship that is transiting our waters
or may be here for a day or 2, but when some of these ships sit
at our docks for 4 or 5, 6, 7, 8 months and continue to pay
people something less than the minimum wage, continue to be
exempt from the workman's comp laws, and they are right across
the street from hotels that have to live by all the rules or,
in the case of New Orleans, they were immediately adjacent to
an American flag vessel that was paying its folks American
wages, living by the American rules, seafarers' rules,
workman's comp, Mr. Chairman, it is not fair. And if we are
going to address unfairness in this bill, it is something that
we should look at and particularly since we were the charter.
We hired those guys. We hired those guys in my home county.
As recently as February, we had something like 18 percent
employment. In an adjacent county, we had 16 percent
employment. Many of those people had come from the casinos in
Biloxi. They would have loved to have done something similar to
that on a ship that we are chartering. Unfortunately, we have
got that ship from a Third-World country who are living by the
very rules that are unfair.
Again, it is--I think if it is transiting our water, but
when it is camped out in our water 4, 5, 6, 7 months at a time
on the American taxpayers' time, that is not right. I would
hope that this bill would be the vehicle to address that.
I mean, we, as a Nation, have made several mistakes along
the line. We had just finished two cruise ships that were under
construction in Pascagoula early on in the Bush Administration.
In the wake of 9/11, a guy named Zell chose not to finish it.
So we sold them for about a penny on the dollar. They are being
built in Germany, which is not a low-wage country. They are
going to be completed. But if we would have completed them,
they would have been in our inventory, and we would not have to
have hired those foreign ships who were adding ships to our
inventory.
That was mistake number one. That is water under the
bridge.
Katrina wasn't the last disaster to hit America. There will
be other disasters. Some of them will probably be manmade. One
of the ways we are going to respond to that is with temporary
housing being brought in; and since many of our major cities
are on the water, it is a pretty good bet that the temporary
housing will come in the way of ships.
In fairness to the American mariner on that tugboat across
the dock or that off-shore supply vessel across the dock or
that crew boat across the dock, in fairness to those guys who
are living by all the rules, some rules have to be established
in this committee that, if we are going to hire somebody, they
are going to have to live by the same rules. If they are going
to be tied up to the American dock for 3, 6, 7, 8 months, they
are going to have to live by our rules.
Again, if this bill is in the process of being put
together, I would ask for that consideration; and I would also
welcome the comments of you two gentlemen as to that. Because I
just don't see, if you people pride yourself on the law, how on
earth can we have a set of laws for this ship but not that one
and they are right across the dock from each other.
Mr. Stevenson. Well, I can take you one step further. You
can have on the same ship people from different nationalities
working side by side and one nationality on a foreign flag
vessel getting totally different conditions than another. So
there are many disparities of the law; and that is why I think
it is so very important that we think very, very carefully
about throwing out the projections that we have without fully
understanding the ramifications of them.
I would really wish that we could have an industry-wide
model program first before we step into those waters of
changing hundreds if not thousands of years of maritime
practice and law protecting seafarers.
Mr. Nordquist. I wanted to say my colleague knows the
Maritime Labor Convention much better than I do, having
participated extensively in it; and all I want to comment on is
that the proposed amendments, in my judgment, are comparable to
what is state practice around the world. That isn't to say that
it is fair. The living conditions and many other things are
different in different countries, and we still have an awful
lot of respect for the flag. It comes in handy when it is one
of our warships that is under our flag. So that the flag system
is very complex, and I have no comment I can actually offer on
what you raised except, the way you expressed it, it certainly
sounded to me like there was something that was wrong about it.
But I can't say anything about the specifics because, sir, I
don't know.
Mr. Taylor. Mr. Chairman, if I may close, you know, there
has been a heck of a lot of debate in this Congress,
particularly this summer, about illegal immigrants taking the
jobs of Americans. In this instance, these are jobs that the
American taxpayers paid for. It is part of the Hurricane
Katrina recovery. It will be a part of the next hurricane
recovery. And, again, in fairness, I would ask that we have a
full and open debate on that.
If a ship is going to be tied up in our dock for months at
a time at taxpayer expense, the very least we, as the stewards
of those tax dollars, ought to demand is they live by our
rules, every one of our rules, just like the American flag
vessel across the dock from them.
With that, thank you, Mr. Chairman.
Mr. LoBiondo. Mr. Oberstar.
Mr. Oberstar. I think the gentleman from Mississippi has
raised some very cogent and pertinent questions and the
gentlelady from Florida has done as well. I was listening with
one ear as I was talking to the FAA about other matters in the
company room. I didn't--
Mr. Filner. I raised them, too.
Mr. Oberstar. I didn't hear yours. There was a break in the
conversation. I wasn't able to hear what you were saying, but I
am sure they were very, very relevant. No question at all.
Luis Bonanos is a 61-year old pastry chef from Colombia. He
understands, writes a little bit of English, can read only a
little bit of English. His shift was 1:00 a.m. to 10:00 a.m.
And then 1:00 p.m. to 3:00 p.m. And then 4:30 p.m. to 8:00 p.m.
On Sunday through Friday and so on, for a total of 14 and a
half hours Sunday through Friday and then 15 hours on Saturday.
That is 99 and a half hours a week. His requirement was to put
in 70 hours a week. We have a deposition from him to this
effect. But Norweigian Cruise Lines never paid him overtime,
even though the Norweigian Seamen's Union contract provided
that he would be paid overtime for over 70 hours.
Now I have never worked on board a cruise line, but I have
taken three cruises. Well, they really weren't cruises. As a
student, I traveled from New York to New Java aboard the Queen
Mary en route to a graduate program and came back aboard the SS
United States; and when I left Haiti, I took Grace Lines from
Haiti to--after working there 3 and a half years--to New York.
So it wasn't really a cruise, but it was a port. One of these
things we call cruise vessels today. There were a lot of people
that were taking it for a cruise.
I worked in the inermis. I worked in a concrete block
factory. I earned my way through college. I ducked out a few
times, but I never put in 70 hours in a week. The human body
has limits. Our turnover of time hasn't changed in 50,000
years. To ask a person to work 99 hours is bad enough--I mean,
on top of not to pay.
So when it came to make the deposition in U.S. District
Court he said, quote, from the deposition, I did not complain
about not being paid overtime because I could not afford to
lose my job. I had a family to support, and they depended on
the money I earned. Workers on the ship are very much afraid of
losing their jobs. The union cannot prevent people from being
fired for trivial things. There is no guarantee you will be
rehired at the end of your contract.
For these reasons, people on the ship do not complain about
conditions or the lack of payment of overtime because they are
afraid they will be called a troublemaker by the supervisors
and soon be fired. They are not like airline mechanics, AFP
mechanics certified by the FAA; and if the mechanic says I will
not sign off this slip, that plane doesn't move.
So what do you think about that? Is that, Professor
Nordquist, what you said is an industry-wide practice?
Mr. Nordquist. I did not say anything like that.
Mr. Oberstar. You were referring to questions asked by the
gentleman from Mississippi and saying, well, these are sort of
industry nation, not worldwide practices.
Mr. Nordquist. The Maritime Labor Convention does have a
70-hour provision, but, frankly, I am sure that Mr. Stevenson
has something to offer here. But, frankly, I think I can almost
rest my case on what you have said about why I support putting
due process into this 1790 law. It is in our 4th and 14th
amendments to the Constitution.
There ought to be due process for a fellow like that, but I
don't think he is the only person that deserves due process. I
think everybody deserves due process. And I am not sure that on
a case like that that I would have any quarrel with the facts
as you presented. It is just that I would like to see him--get
paid what he is due right away, rather than waiting 10 years
and going through some big class-action lawsuit clogging up the
courts.
Mr. Oberstar. Your testimony, which I read over last night,
says much has changed in the last 90 years. Vessels and cruise
are much larger. Treatment of seamen, many of whom are women,
is more humane. I don't find 99 and a half hours to be more
humane.
Mr. Nordquist. In the case you gave, was it a woman?
Mr. Oberstar. No.
Mr. Nordquist. The Maritime Labor Code is attempting to
improve on this situation. In any work setting, there are going
to be problems like this person encountered; and I am not at
all sympathetic to any employer that treats his people that
way. Doug Stevenson has been a much more articulate advocate
than I have been on that point. But my argument for you is that
there should be a due process procedure so that they don't have
to go into court, that if they have a complaint about their pay
stub, they go in and have proper records. And if they are not
getting their overtime and they are entitled to their overtime
and they have really signed a contract, I am in favor of,
obviously, of their getting paid promptly.
Mr. Oberstar. And--I want to get Mr. Stevenson. And you
would be right if everything were on the level. But if they
are--the workers on board these ships are in the nature of
indentured servants. They don't have much recourse. Then it is
a different picture.
Mr. Stevenson.
Mr. Stevenson. Well, that is exactly why we are here, sir.
These incredible hours of work that seafarers are induced to
work for tips--and, actually, they would get no additional tips
whether they worked 70 or 110 hours a week. They get the same
tips, but it is a way to inhumanely work people beyond human
limits.
And I might add that probably the person you are talking
about not only was working these kind of hours every week but 4
weeks out of the month and for a contract from 6 to 10 months
out of the year with no right to be rehired. Once these
seafarers finish their contracts, they go to their recruiting
agency, and they try to get another contract. Because they are
hired through recruiting agencies, for the most part, in their
home country; and they know from the ship and they know from
the recruiting agency that if they try to enforce their rights
they will be labeled a troublemaker and they will be sent home
probably never to work again on another ship. And these are
highly valued jobs.
An ordinary seafarer, ordinary seaman coming from the
Philippines working on a cruise vessel is making more than the
doctor in his hometown, making more than his high school
principal. So they are not going to jeopardize that. That is
why they put up with these kinds of hours.
And putting a notice requirement--let us say, for example,
the 180-day notice requirement. Seafarer starts his 10-month
contract. Notices his first paycheck is wrong. He complains. He
is on the next plane home.
And, by the way, the shipping company doesn't have to pay
him for 4 days. By that time, our immigration laws, which say,
well, he is out of a job. He is no longer a crew member. He is
out of the country within 24 hours.
Mr. Oberstar. So how do you get protection for this person?
If that happened in an iron ore mining processing plant in my
district, they would shut that plant down today. The union
would shut it down, and no one would walk off the property, and
they would fix the problem right then. What protection does
this person have on a ship?
Mr. Stevenson. Fortunately, this person still has a penalty
wage statute that exists today. That person, if we change it in
the notice requirements, it would encourage litigation. The
provision that says that the penalty is up to 2 days wages
would make--guarantee that the shipping company would never pay
because it would want to litigate what is an appropriate
penalty. And, furthermore, the process where the shipping
company would have a certain period of time to correct their
own--put the money into escrow, he has two choices when
notified. He can either pay the seafarer or he can put the
money into escrow and then go to court for determination.
Well, what does that result in? If the shipowner puts the
money in escrow, goes to court, the seafarer is home. He can't
come back to litigate; and if he could come back, he couldn't
afford the cost of defending the suit. So the shipping company
would have a default judgment, be able to keep the penalty and
the wages. It would not help the seafarer.
What these notice requirements do is not provide due
process for the seafarer but rather makes a simple,
straightforward process into a highly complicated procedure
that would make it guaranteed that the seafarer would never be
able to take advantage of it. It would be as, Professor
Nordquist's written statement said, the equivalent of our U.S.
Tax Code in complexity.
Now we don't want to change a simple procedure that is
understandable by anybody, that doesn't require judicial
determination and can be understood whether you speak English
or not, to be changed to this complex issue that even I have
trouble understanding, and I am a lawyer.
Mr. Oberstar. Well, I understand that the Royal Caribbean
and Norweigian Cruise Lines have respectively reached
settlement agreements in class action cases for $18.4 million
and $25 million respectively. How would this due process
language work in such--if you could bring a class action suit?
Mr. Nordquist. Mr. Oberstar, you wouldn't have that
extraordinarily complex litigation when you are talking about
5,000, 10,000 litigants if there would have been a fair process
in place to begin with. That is, if a wage earner is due money
and he notifies his payer, the payer is only given 60 days and
he has got to pay that money or put it in escrow, and there are
lots of ways that pay disputes are settled short of going into
that kind of litigation.
Mr. Oberstar. Does that individual have a shop steward on
the ship to defend him and back him up with the captain?
Mr. Nordquist. I am not sure there is uniform practices
about that.
Mr. Oberstar. I know in the days before the Steelworkers
Union in the ore mines in northern Minnesota, if you complained
about something, if the mining boss didn't like it, he sent you
home; and that was it. And they had spies in the--we called
them stool pigeons--in the barber shops and in the pool halls
and in the libraries to see what books the men took out because
they might be taking out something subversive about how to
organize a union; and if they had just a little snitch, bang,
you are out.
Then we got the Steelworkers Union; and my father, frankly,
was the first one to join--card number one, 1937.
Then they had someone to stand up for them.
If you are on board a ship and do not have an union and you
don't have an organization and have someone to back you, and
you are from land's end someplace and you do not speak English
very well, and you do not read it very well, and they want to
hang you, they can do it.
Mr. Nordquist. Under the Maritime Labor Convention, if a
seaman is in a U.S. Port, even if he/she is a foreign seaman,
there is a requirement to comply with its judicial settlement
terms. They can be enforced by the Coast Guard.
There are a lot of things that we need to do to improve
from what you outlined, and I respect very much the distance we
have come. There is a lot of room for commonality here. I am
not sure there is that much disagreement.
Mr. Oberstar. Thank you. Luis Bonanos, by the way, was
fired for having a not quite clean enough pot in his locker.
Mr. Stevenson.
Mr. Stevenson. Thank you, sir. Just from the practice in
the cruise industry, not every cruise line has collective
bargaining agreements. Some do and some don't.
And some international unions in foreign countries are not
the same type of unions that you would understand in the iron
fields in Minnesota. Some unions are nothing more than hiring
halls for replacement agencies for seafarers.
Now I go back: What is due process? What does a seafarer do
in this situation?
That is what the value of the Penalty Wage Act has been
over the years, since 1790, where seafarers have known, when
they come to the United States, there is some hope of justice.
They may not be able to afford counsel to litigate a case
because when you look at the cost of litigation in the United
States, that is another issue that we want to look at. But they
knew that there was a penalty wage statute that said any
seafarer on a ship that takes on or discharges cargo in the
United States, the courts of the United States are open and
there will be a 2-day penalty for every day of delay to
encourage ship owners to make sure they are paying their
seafarers on time.
Another way of looking at this is, perhaps these class
action suits have demonstrated that the cruise lines involved
were not deterred by that 2-day penalty for every day of delay.
And maybe another solution would be to raise the penalty to 3
or 4 days' penalty. That is another way we can look at it.
But the cards are all in the ship owners' hands. They are
the ones who can determine how much the seafarer is getting
paid. They are the ones who can make sure the seafarers are
getting paid; and they, as an industry, can set an industry-
wide standard of conduct to make sure that seafarers' rights
are protected in that industry, to dispel all of these bad past
practices we are talking about.
Mr. Oberstar. That is exactly what concerns me is, the deck
is stacked against the worker. The ship owner has great power.
In this draft discussion, draft bill there is a proposal for a
statute of limitation on wage claims. They would propose 3
years from the date of commencement of the voyage.
Now, Professor Nordquist, you are from a very distinguished
institution, Mr. Jefferson's university, on which there was a
great program the other night on the History Channel. It was
wonderful. I will be diverting if I go into discussion of it.
You should get it and see it, the brilliance of Jefferson.
But I do not think he would have agreed that the statute of
limitation should run from the commencement of the voyage, but
rather from the date that the claim arose. Is that not the way
you usually do?
Mr. Nordquist. To be very direct, the principle of the
statute of limitations is what is important, and it ought to be
a clear event to trigger it. In the Fair Labor Standards Act
they have a 3-year statute of limitations for where there is
willful misconduct.
Mr. Oberstar. When does it start running?
Mr. Nordquist. From the time the dispute arises.
Mr. Oberstar. But not from the commencement of the voyage?
Mr. Nordquist. No. They tailored this to their
circumstances.
The important point is that there is no change to the
penalty in the law under the proposed amendments. There is a
proposed 3-year statute of limitations. If 3-1/4 years is
better, you know, I cannot offer any judgment on it.
I do think that there is a very sound reason that virtually
every other aspect of American law has a statute of
limitations. The reason is that after a certain period of time,
you simply cannot get justice.
Mr. Oberstar. I agree, but, Mr. Stevenson, should that time
start running from the date you get on board the ship or should
it start running from the time of the infraction?
Mr. Stevenson. Well, if there is a statute of limitation,
obviously the time of commencement of any statute of
limitations should be the time the injured party has knowledge
of the injury or should have had knowledge of the injury.
I mean, this case that is proposed by the cruise industry
is that the statute of limitations would begin from the time
the seafarer started working on the ship, before--there could
be months or a year before anything happened.
Mr. Oberstar. It just does not make any sense at all. That
is abusive.
Mr. Stevenson. But it has not been a problem actually in
the past, without having a statute of limitation. The law of
laches, the equitable principle of laches, has worked quite
effectively in the very few cases that ever come to court
underthe Penalty Wage Act. So I am not certain that is a
necessity for the change.
I think all of the changes taken together show there is a
lot more study that needs to be done in every single one of
these provisions before it is enacted.
Mr. Oberstar. Now, the draft legislation also would--it
seems to me, would stop class action cases by requiring an
employee to provide 180 days' notice. Is that your reading?
Mr. Nordquist. That would be the longer of the two periods,
yes.
Mr. Oberstar. Well, there are many other questions about
this draft legislation, and I just I think it is really
oppressive on the worker. And if we were to be enamored of the
wages and hour law in the U.S. That is time-and-a-half for
overtime over 40 hours. Steelworkers even negotiated time-and-
a-half for over 8 hours; that was a major breakthrough. It took
us 200 years in the Industrial Revolution to get to a 10-hour
workday. That was 1910. And then it took another 25 years to
get to an 8-hour workday. And now, in the cruise lines, it has
gone to 70 hours and to 100 hours.
Body circadian rhythms haven't changed in 50,000 years, and
I do not know how people do that. I do not know how they
perform underthose circumstances. But when they sign on, they
ought at least to have justice on their side. And I do not
think this language in here provides a path to justice.
Thank you, Mr. Chairman.
Mr. LoBiondo. We are supposed to have votes in about 15
minutes. It is my intention to wind this up at this time. I
have tried to be very generous with the allotment of time to
ask questions.
If anybody has additional questions, we will be happy to
accommodate, but we are going to wrap this up before the votes
I can promise you.
Okay, seeing no more questions, the meeting is adjourned.
[Whereupon, at 4:46 p.m., the subcommittee was adjourned.]
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