Editorial: USCG: Guilty Until Proven Innocent?

Call the U.S. Coast Guard overseers of the law, monitors or whatever you want, but the agency rules over the merchant marine with an iron fist. No other private business is policed by military. In legal actions involving merchant mariners, defendants are too often considered guilty until proven innocent.

While the agency puts on a public face that portrays efforts to perfect an industry and, after 9/11, to make our nation safe, unfortunately it continues its downhill slide in services it provides rivermen, et al.

A common complaint during the last 30 years has been about how the agency promulgates rules based on its blue-water experience and forces brown-water mariners to comply with regulations that are misfits when it comes to brown-water operations. Drug laws represent one example. The Coast Guardsman who compiled the drug laws leaked his story to a former federal investigator who happened to be a source for The Waterways Journal. He spent his time doing other things, and the money intended to finance the activity was spent. Moved finally by urgency, he simply adapted existing blue-water rules, and they were approved, over industry objections.

We used the example of drug rules because there is reason to think that guilt or innocence has little to do with official findings when licensed rivermen are charged with using drugs and drummed out of the corps, so to speak.

The cases in question involve an engineer, Christopher J Dresser, who the Coast Guard has prosecuted for 10 years to revoke his license for allegedly using marijuana. The root of the matter is a voluntary drug test he took in late 1997 to obtain a “drug free” certificate. He was attending an engineering school at the time. His urine tested positive for THC metabolite. His defense holds that the substance was not present because he used marijuana but because of “his consumption of liquid hemp seed oil, a legal dietary supplement.” This, the defense says, would cause a urine drug screen to test positive for the THC metabolite. The Coast Guard rejects that defense.

Dresser filed a lawsuit earlier this year against two Coast Guard administrative law judges, Coast Guard Commandant Thad Allen and two other principals.

Now let’s be honest about it. We have no idea as to the guilt or innocence of the plaintiff. What we do know is that his lawsuit is replete with charges of violations of legal procedures. Other charges involve procedural violations where defendants are accused of discussing the case with people they shouldn’t.

Well, litigation is complicated, but we can report that the National Transportation Safety Board agreed way back on June 11, 2003, that there were procedural questions as to the handling of the case, reversed a Coast Guard decision and said the case should be reassigned a new hearing before a different law judge. It focused on procedural matters involving what the board believed was a necessity for the ALJ to withdraw from the case due to conflict of interest. The perception of conflict was so strong as to warrant withdrawal, the board said.

We have no idea how Dresser’s case, seeking $5 million in compensatory damages and $10 million in punitive damages, will turn out. A second suit by Dresser seeks $2 million in compensatory damages and $4 million in punitive damages. And, of course, Dresser wants his license reinstated.

As we reported in this column August 21, 2006, Capt. Joseph J. Kinneary lost his unlimited Master’s License with 15 endorsements. “Capt. Kinneary,” we wrote, “was unfortunate enough to have a psychological disorder known as shy bladder syndrome, which prevented urination during random drug tests.” The Coast Guard charged Kinneary with misconduct and his license was ultimately revoked. Subsequently, Capt. Kinneary authored The Good Lord Hates a Coward, “An account of life as a merchant seaman.”

In both cases (Dresser’s and Kinneary’s), experienced mariners were taken out of the workforce at a time when industry is far short of the workforce it needs. In both cases, the actions went on for about 10 years.

Again, we don’t have a clue as to whether the plaintiff is guilty or innocent, but criticism of the USCG for running roughshod over the towing industry is not new. We saw this as it related to the horizontal clearance of a new bridge over the Arkansas River at Little Rock at a time when there was strong opposition from rivermen, the U.S. Army Corps of Engineers and even the commander of the then Second Coast Guard District. We saw it in the manner in which the Coast Guard manhandled the placement of low-resolution radar units in the New Orleans area against much opposition.

To simplify the situation, we might say that the USCG is accused of following its policies come hell or high water.

There are questions surfacing about whether the Coast Guard can or should continue to regulate mariners. There are lots of opinions on that one. If we are all wet on this issue, we invite the Coast Guard to dry us off.

Full speed ahead!

The Waterways Journal encourages letters to the editor.
Have something on your mind?
Send letters to: jshoulberg@waterwaysjournal.net.
(Please indicate whether or not your letter is intended for publication.)