USCG 12-Hour Clause Policy Letter Issued
(December 2000)
The USCG recently published a letter concerning
watchkeeping policy and workhour limitations on towing vessels, offshore
supply vessels (OSVs) and crewboats using a two watch system. This letter is
labeled G-MOC POLICY LETTER 4-00 and is dated Sept. 1, 2000. The letter is too
long to publish here but may be found online at the
USCG web site (use the
“Search” function look for G-MOC Policy 4-00). It is unfortunate that
the letter must be read with several other references handy. They include
Title 46 USCA and at least part of the Code of Federal Regulations. The letter
goes into a good bit of detail concerning interpretation of the law and
regulations concerning hours of work on vessels authorized to use a two watch
system. The letter also goes into the Standards of Training Certificating and
Watchkeeping (STCW) although these standards clearly do not apply to all
vessels that use a two watch system.
The policy letter provides us with the USCG view of the
famous (or infamous) “12-hour clause.” It is remarkable that the “Policy
Letter” was published at all, since it seems by and large to be a restatement
of the law without a great deal of interpretation added. In all fairness to
the USCG the letter does collect in one place most of the issues affecting
work hours within a two watch system.
According to the Policy Letter, mariners are responsible to
obey the law and for reporting suspected watchkeeping and work hour violations
to the USCG, although reporting violations does not exonerate the mariner from
any potential violation or prevent the USCG from proceeding against their
license and/or Merchant Mariners Document (MMD).
The USCG indicates that operating companies should ensure
that employees are informed of the law and educated regarding the safety
concerns of not getting adequate rest. The USCG states that operating
companies should provide unambiguous guidelines to the master regarding
expectations to comply with safety requirements and the law even when these
are in conflict with operational demands.
It is most curious that the USCG indicates that the
operating company has a duty to train the master and other employees as to the
content of the law. The Master is considered by the courts to be part of
company management. The Master is generally told in writing by the company to
comply with the law. Historically, the USCG has chosen to suspend or revoke
the Master’s license for violations of law rather than proceed against the
company. The policy letter assumes that the company knows more about the law
than does Master. In today’s world, the Master generally knows more about the
requirements of law than do many Operations Department supervisors.
The policy letter goes on to describe how the USCG can
initiate an investigation into possible violations based upon confidential
information provided by a mariner, anonymous tips or through the findings of a
USCG casualty investigation.
The USCG is charged by Congress to investigate casualties
and personnel actions. The USCG has subpoena authority in these actions, as
well as a responsibility to prepare reports and maintain statistics. While the
USCG has authority to initiate an investigation based upon a complaint, their
powers are limited, they have no subpoena powers in this action, no report of
investigation is made to superiors and we believe no statistical records of
such complaints are either authorized or indeed allowed to be kept by the
USCG, unless they are investigating the conduct of a licensed or documented
individual.
Records of hours worked are often not maintained as company
records nor are they required by the USCG to be maintained. These rules are
basically unenforceable in all but extremely obvious violation cases.
Mariners should be aware that it is generally the USCG
policy to take action against a licensed individual’s right to employment
rather than to issue a citation against the company for violation of law.
This is all well and good but what does the letter mean to
mariners and companies.
The Coast Guard is attempting to reassure mariners that
they (the mariners) can report apparent violations of the manning and
watchkeeping standards to the Coast Guard without fear of retribution on the
part of the company. What the letter does not go into (nor can it) is that
while the law protects mariners from employer retribution against “whistle
blowers”, it does not protect mariners against self-incrimination. As seen by
of the USCG a mariner will most probably lose his right to employment for
manning or watchstanding violations without regard to whether it was done with
or without shoreside supervisory direction. In other words, any violation that
a crewman can complain about to the USCG, he (the crewman) has been a
participant. The crewman may therefore be placing his license or MMD in
jeopardy.
On the other side of the coin, the Coast Guard is
attempting to convince operating companies that they have a duty to train
mariners about the law. We do not believe that such a duty exists in law or
regulation. The company does need to tell the master (in writing) to comply
with all laws and regulations. Beyond that, its up to the master to train
himself.
One issue worthy of note: “Work” is any activity clearly
counted against the 12 hour (or other) day. It includes watches, performing
maintenance, unloading cargo and performing administrative tasks. In most
cases only watches can be used to track Mariner’s workhours. Only the mariner
knows when the maintenance, cargo handling and administrative duties exceed
the hourly limits unless they are specifically logged. In many cases, doing
anything beyond standing watches exceed the limits. Who knows? How can it be
tracked? It sounds like we are on the “honor system” for workhour limitations.
It is all very confusing.
One last issue concerns the legal requirements that the
licensed deck officers be properly rested before taking the deck watch of a
vessel departing port. The USCG letter indicates that the mariner is
responsible for arriving at the vessel properly rested. Who is to judge
whether he has the proper 6 hours of off time before departing port? What if
he drives the carryall from Houston to Fourchon for a crew change? What if he
is not the driver but cannot “rest” in a moving vehicle. Who decides? It
sounds like only a fired or otherwise disgruntled seaman would say that he was
not rested, and further if he was not properly rested, he should not have
taken the vessel out of port.
Does anyone remember Catch-22? This sounds
suspiciously like a Catch-22 for both mariners and employers.
