USCG 12-Hour Clause Policy Letter Issued

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 (www.uscg.mil/hq/g-m/gmhome.htm and using the “Search” button 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 all sounds like a “Catch 22” for both mariners and employers.

Charley Havnen is a Commander USCG Ret. His organization can help you with your vessel construction project, regulatory problems, vessel manning issues, procedure manuals, accident analysis or expert witness. His organization can do what you can’t or don’t want to do. He can be reached by contacting the Havnen Group (800) 493-3883 or (504) 394-8933, fax: (504) 394-8869.