CONTINUING PROBLEMS

The current statutory and regulatory regime for vessel manning suffers from several deficiencies that cannot be overcome by administrative innovations. They are at once both too broad and too rigid. The manning code, despite the 1983 recodification, is mostly a conglomeration of disjointed legislative responses to spasmatic maritime disturbances throughout this century. It provides no overall objective that the Coast Guard is expected

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to pursue in administering the statutes. On the other hand, the individual provisions tend to focus too narrowly on discrete facets of the manning picture. Their rigidity deprives shipowners, masters, and seamen of the flexibility needed to develop a prosperous merchant fleet.²⁰

In 46 U.S.C. § 2103, Congress has directed the Coast Guard to enforce, carry out, and uniformly administer all the shipping statutes for which it is responsible “in the interests of marine safety, and seamen's welfare.” This broad statement provides little practical guidance for administering the manning laws. In particular, it fails to inform the Coast Guard and the public how the two stated objectives, marine safety and seamen's welfare, relate to each other or to other factors that affect vessel manning. For example, economic competitiveness—both within the maritime sphere and with other modes of transportation—is obviously a major factor driving the shipowner's desire to decrease crew size. It is also a necessary element in developing and maintaining the type of merchant marine fleet and infrastructure envisioned by section 101 of the Merchant Marine Act, 1936 (46 U.S.C.

app. § 1101) (set forth in the attached list of authorities). Another relevant factor, repeatedly highlighted by the Maritime Administration and the Department of Defense, is the need to maintain a pool of qualified merchant mariners for national emergencies. How should these and other factors affect the vessel manning calculus?

The absence of clearly stated policy objectives is a major shortcoming, but it does not present as serious an obstacle to rational treatment of vessel manning issues as does the rigidity of the current watch-standing, work-hour and work-assignment restrictions.

Individually, these provisions may have been rational reactions to the circumstances that gave rise to their enactment.²¹ Collectively, however, they needlessly deprive the Coast Guard and the industry of the flexibility

2 As this is being written, it appears that Congress is about to impose yet another disjointed manning restriction in response to a marine disaster. The House of Representatives' version of the Oil Spill legislation that is scheduled to go to conference in January 1990 would add a new subsection (n) to 46 U.S.C. § 8104:

On a tank vessel, a licensed individual or seaman may not be permitted to work more than 15 hours in any 24-hour period, or more than 36 hours in any 72-hour period, except in an emergency or a drill. In this subsection, “work” includes any administrative duties associated with the vessel whether performed on board the vessel or ashore.

H.R. 1465 § 4117(b), 101st Cong., 1st Sess. (passed by the House on November 9,1989). While this new work-hour restriction may be entirely reasonable, it would make more sense as part of comprehensive regulations issued by the Coast Guard after public study and rulemaking.

21 This may be a charitable statement. Neither the work-assignment nor the work-hour restriction, for example, does much to serve either seamen's welfare or marine safety. At best, they provide a crude means of dealing with the issues of strain, F file: This new digital representation of the original work has been recomposed from XML files created from the original paper book, not from the original typesetting files. Page breaks are t line lengths, word breaks, heading styles, and other typesetting-specific formatting, however, cannot be retained, and some typographic errors may have been accidentally inserted. version of this publication as the authoritative version for attribution.

needed to address the manning issues facing the merchant fleet. The current statutes may not present inordinate obstacles to setting the manning level on vessels whose machinery, equipment, and layout conform to the traditional design, but for newer vessels, designed specifically to minimize personnel requirements, they are awkward at best. More importantly, they inhibit innovation and experimentation.

The problem with the present statutory regime is not so much that it dictates unnecessarily large crews. It does not. The problem is that it deprives the maritime industry of the flexibility needed to best utilize the crew members assigned. Theoretically, current law would allow an oceangoing vessel to operate with as few as five seamen—a master, a licensed engineer and three licensed mates. As a practical matter, however, the Coast Guard is unlikely to approve so small a crew as satisfying the safe operation requirement of 46 U.S.C. § 8101 (a). The watch-standing, workhour, and work-assignment restrictions tend to require increases above that minimum to be supplied in quantums of three (either engineers or deck). As a result, the practical minimum manning under current law is approximately 17—a master, three licensed mates, four licensed engineers, six unlicensed deck seamen and three unlicensed engineers. Again, the problem with this number is not that it represents an unreasonable floor. Most vessels will in fact require more people for safe operation. The problem with the number is that it is derived by using arbitrary parameters that serve no useful purpose in determining how a given vessel should be manned.²² In other modes of transportation, where Congress and the public have demonstrated a serious interest, manning issues are regulated in a more sensible manner. In aviation, for instance, Congress has provided broad statutory guidance authorizing the administrator to develop and issue regulations.²³ Under these statutes, the Federal Aviation Authority has issued detailed regulations governing various aspects of aircraft manning.

22The current statutes also fail to reflect modern concepts of labor-management relations and collective bargaining. They perpetuate the archaic view of seamen as helpless waifs who must be protected not only from the selfish vagaries of masters and owners but also from their own ignorance and intemperance. Such anachronisms hardly provide a basis for a rational approach to manning policy.

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For example, 14 C.F.R. part 121, subpart M prescribes minimum manning requirements in terms of numbers, and 14 C.F.R. part 135, subpart F prescribes detailed work-hour limitations, for various types of aircraft and operating conditions.²⁴

To some extent, this approach transfers the political heat for establishing manning policy from the Congress to the administrative agency. Any statute that bestows the flexibility needed to react to changing conditions necessarily increases the extent to which the administrator must deal with political considerations. And the Coast Guard, which has always been uncomfortable with the political aspects of its regulatory role, may resist a change that will increase its political role. In the end, however, there can be no doubt that the maritime industry would be well served by removing the current artificial impediments and giving the Coast Guard the discretion and flexibility needed to adopt more functional and rational vessel manning regulations.

CONCLUSION

The Coast Guard, by insisting on a pragmatic interpretation, has managed to extract some degree of reason from the present statutes. At the frontiers of manning practices, however, the Coast Guard's position is precarious. Both the Coast Guard and the industry—shipowners, masters, unions and individual seamen—need and deserve a more stable platform on which to construct the manning practices that will take this nation into the twenty-first century.

find necessary to provide adequately for national security and safety in air commerce.

(b) Consideration of needs of service; classification of standards, rules, regulations, and certificates. In prescribing standards, rules, and regulations, and in issuing certificates …, the [Secretary] shall give full consideration to the duty resting upon air carriers to perform their services with the highest possible degree of safety in the public interest and to any differences between air transportation and other air commerce; and he shall make classifications of such standards, rules, regulations, and certificates appropriate to the differences between air transportation and other air commerce…. The [Secretary] shall exercise and perform his powers and duties ... in such manner as will best tend to reduce or eliminate the possibility of, or recurrence of, accidents in air transportation, but shall not deem himself required to give preference to either air transportation or other air commerce in the administration and enforcement of this title.

24The approach to manning in the railroad industry is similar. As with aviation, Congress has given the administrator broad authority to develop, issue and enforce regulations on manning practices. See 45 U.S.C. § 431 concerning promulgation of regulations “for all areas of railroad safety.” In addition, however, Congress has, by statute, prescribed detailed work-hours restrictions for railroad employees. 45 U.S.C. §§ 61–66; see also Federal Railroad Administration regulations at 49 C.F.R.

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LAWS AND RULES CONCERNING VESSEL MANNING