NTSB Overturns Commandant On Imposition Of Excessive Sanctions
The appellant and mariner was the master of a tug-barge flotilla being loaded at an ammonium sulfide facility. The facility, which was in charge of the operation, overloaded a barge by about 1.5 feet over its marks during the night. The tug master asked the facility to offload the overloaded barge back up to its marks, but the facility refused until after another vessel came in first to be loaded. The tug master then shifted his overloaded barge to an adjacent slip at the same facility to await offloading. But before the facility was ready to offload, the barge was found to be flooding and, despite pumping, continued to settle steadily at the dock. To avoid a sinking at the dock, the tug master shifted the barge again and intentionally grounded it on a nearby bank where it continued to settle. During the next 2 days, the tug master attempted unsuccessfully to get additional pumps brought out so he could control flooding and shift his barge back to dock for offloading. Three days after the initial overloading, the tug master finally attempted to move the sinking barge back to the dock when it sank in transit and polluted the river with sulfides. Only after the sinking did the tug master contact the Coast Guard and submit a CG 2692.
At the Coast Guard hearing, the Coast Guard Administrative Law Judge (ALJ) found the appellant tug master negligent for: failure to take timely action to stop flooding after the intentional grounding; for attempting to move the sinking barge back to the dock; and for failure to timely notify the Coast Guard. The ALJ noted that the recommended range of sanctions (46 CFR s. 5.569) provided for a 2-6 month suspension for negligence, but contained no guidance for violation of the reporting rule. With ample citations to the broad scope of his own discretion, and premising his actions on several vague instances of non-reporting, the ALJ then proceeded to revoke the tug master’s license.
Not surprisingly, the Commandant affirmed the revocation, again with generous nods to the ALJ’s theoretically limitless discretion, and peppered by a list of horribles, i.e. all of the admittedly aggravating and probably inexcusable mistakes and miscues committed by the unhappy tug master.
On further appeal, the NTSB concurred with the Commandant’s findings of negligence, but there are two points in the NTSB decision that are of interest to us.
First, particularly because we have seen in recent times an increase in late/failure to report casualty claims, the NTSB agreed with the Commandant in rejecting the appellant’s argument that his untimely submission of the CG 2692 report was de minimis. On this point, the NTSB noted: “Timely completion of required paperwork concerning a marine casualty is critical, especially in cases involving severe environmental repercussions.” NTSB Order No. EM-211, at 5. While a reading of this decision makes it clear that the Coast Guard made a good case that the appellant’s untimely initial notification could arguably have been a significant causal factor in the barge ultimately sinking and the resulting ammonium sulfate pollution (because the Coast Guard claimed that it could have supplied extra pumps had it been notified before the sinking), it is still hard to understand why the appellant’s failure to file the CG 2692 paperwork itself (as opposed to making the initial telephone or radio notification) could have made such a contribution, particularly when, as here, the late filing ofthe paperwork occurred after the Coast Guard had been notified and after it had in fact actually appeared on scene. Nonetheless, that is the language of the decision; and it is language and reasoning, bearing upon timely notification both oral and written, that license attorneys should keep in mind when advising mariners either before, during or after a marine casualty.
Of greater interest is what the NTSB did with the sanction. Noting that adding up the violations in the Coast Guard’s own sanctions table could get only a total suspension of 12 months (6 months for negligence; and two 3-month suspensions for violation of regulations), the NTSB concluded that a license revocation in these circumstances was excessive as it was beyond anything authorized by the regulations, and therefore arbitrary and capricious. It is also worthy of note that the NTSB felt compelled to point out that it was somewhat troubled by the fact that the mariner’s main defense had been totally ignored by both the ALJ and the Commandant. That defense was, namely, that it was entirely the fault of the facility that the barge had been overloaded in the first place and, in addition to that, the facility then refused repeated calls from the tug master to assist in unloading the barge before it sank.
Comment And Assessment
This case is of interest because it supports 2 different arguments frequently made in license defense cases, often without hope of real success.
The first argument it supports is the argument that an overly-severe sanction should be reversed as being arbitrary and capricious. The sanction tables in the Coast Guard regulations are only guidelines, and the selection of a sanction is usually said to be discretionary with the ALJ. For this reason, we do not often see a case in which the imposition of a sanction more severe than suggested by the tables is said to be arbitrary and capricious. This case now can be cited in support of that proposition.
The second argument relates to the weight to be given by the ALJ to evidence at the hearing of the contributory negligence of a third party. Attorneys who practice before the Coast Guard know how much its ALJs like to reiterate the principle that contributory negligence on the part of a third party will not be considered in the ALJ’s assessment of the negligence of the accused mariner. This NTSB decision will now be a useful tool for license defense attorneys to argue that egregious and contributory conduct on the part of a third party may indeed now properly be considered, at least for purposes of mitigating the sanction.
For the above 2 reasons, we see this case as a potentially helpful decision for the future defense of mariners.