BLOOD ON BROWN WATER CHAPTER 10
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CHAPTER 10
A Danger to More Than Just Themselves
Fatigued mariners don't just injure themselves. Too often work boat mariners are given greater tasks than their boats should handle while the mariners themselves become so fatigued and cognitively impaired that handling normal tasking becomes unduly challenging. One of the more common results of underpowered tows combined with overly fatigued crews is the bridge allision – the part where members of the public connect the dots and realize that they or their loved ones could be killed as a result of these abuses. A little admiralty law tutorial may be in order here. Vessels collide with one another and allide with immovable
objects such as bridges or other parts of the nation’s infrastructure like piers, wire line towers, levees, bulkheads and other fixed structures. Ships have collisions with each other but have allisions with bridges.
In a collision, the admiralty courts begin their examination with a sort of “it takes two to tango” attitude. Since bridges, piers, and breakwaters are unlikely to grow wings and fly into the path of an oncoming ship, the courts start with a much more negative attitude towards the Captain who experiences an allision. Despite the long-standing denial by towing industry management, there is a predictive relationship between available horsepower and safe tow size. There is also a relationship between being a non-union “employee at will” Captain and the ability to refuse an unsuitable tow, or refuse to attempt a movement while in an impaired condition. The “at will employee” must tow what he is given whenever and wherever he is told to do so, or he is quite simply fired.
Meet Captain Kevin D. Kelly. Master Fired For Making a Professional Judgment in a Safety Call
[Source: NMA Newsletter #9, Sept./Oct. 2001, p. 24.]
If you are an "employee at will," as are most mariners working for non-union companies, you can be fired at any time for any reason whatsoever. Termination can be particularly painful when you are a long-term employee, are told reassuringly that you are a part of company "management," and are encouraged and expected to exercise your "professional judgment" on the job. This is the story of Captain Kevin Kelly of Alton, Illinois. Let Captain Kelly's letter serve as a warning for long-term employees who hold their jobs without the protection of a written contract. This could be what happens when you exercise your professional judgment! Here is Captain Kelly's story:
On June 3, 2001, while Master of American Commercial Barge Lines (ACBL) towing vessel M/V Tom Frazier, I refused to accept a 12 barge-loaded tow that was destined southbound out of the Upper Mississippi River. On June 4th, I was relieved of my duties by Thomas L. More, ACBL's Marine Superintendent at Burlington, Iowa, while I was still northbound. Subsequently, on June 7th, I received a letter stating that I was terminated immediately for "serious misconduct" for refusing to push this tow. I had been an employee at ACBL for 26 years, 21 of which was in the capacity of Pilot or Captain. I have 15
years of experience on the Upper Mississippi River. In over 21 years I operated vessels for ACBL, I have never before refused to take a tow. So, why did I refuse this one? ACBL claims its Company Policy is for every employee to abide by the company's four operating priorities,
which are:
● Safety of life and limb;
● Safety of marine environment;
● Safety of property and equipment; and
● Cost and efficiency.
As individual employees, we are not only required to abide by these priorities but to report any employees we feel are not doing so. That the M/V Tom Frazier was in disrepair is indisputable.(1) That its state of disrepair was bad enough to affect its performance is also indisputable. Whether or not it was unsafe is an opinion. Frankly, at the time, I was the only person qualified to make that decision. [(1)NMA Reports #R-412 & 412-A, Rev. 1 deal with vessel engineers overwhelmed with overwork, fatigue, and unbearable physical and psychological pressure as well as vessel maintenance issues.] Neither of the Marine Superintendents that kept insisting that the vessel was safe ever boarded it prior to my being relieved. The one that relieved me spent 24 hours aboard and then got off. During this time the vessel never navigated a lock or a narrow swing bridge traveling southbound with the current. In fact, the vessel traveled less than 30 miles southbound for the entire time he was aboard.
The Marine Superintendent that relieved me also had very little experience on the section of river in question. In fact, he brought another Pilot with him to operate the vessel. The second Marine Superintendent hadn't spent a 30-day trip operating a vessel in over 20 years. He, too, hadn't the experience on the river in question that I do. Furthermore, the Pilot that was aboard the vessel when I refused the tow had been aboard for only four days and had yet to operate the vessel south bound. I was the only one who had the experience to make an informed
decision. Before I refused the tow, I took into consideration my experience with this vessel, my experience on the river in question, and the comments, and opinions of the Pilots who had worked aboard the vessel with me. I even called the Relief Captain at home to get his opinion. It was my decision, but it was an informed decision. To call these towboats "uninspected vessels” is misleading. They are inspected every day by the men and women who work on them. By Coast Guard regulations at 33 CFR §164.80, we are required to document an
inspection within 24 hours of boarding the vessel. The question now becomes who is responsible for determining the seaworthiness of this "uninspected vessel?”
The Coast Guard tends to be reactive instead of proactive. I notified St. Louis Marine Safety Office about my concerns. Yet, to the best of my knowledge and belief the vessel was never boarded. So that leaves the men and women who operate them and the company as being responsible for safe vessel operation. The industry has long argued before the NLRB that the Captains and Pilots are management. Yet when I, as Captain in charge of this vessel made a management decision that only I was fully qualified to make, I was terminated for "serious misconduct.” If the Captain cannot be trusted with making such a decision, that just leaves the company men and women behind the desks. Our industry operates on the rivers by the grace of public trust. With the environmental issues we face today, that public trust is shaky at
The Coast Guard tends to be reactive instead of proactive. I notified St. Louis Marine Safety Office about my concerns. Yet, to the best of my knowledge and belief the vessel was never boarded. So that leaves the men and women who operate them and the company as being responsible for safe vessel operation. The industry has long argued before the NLRB that the Captains and Pilots are management. Yet when I, as Captain in charge of this vessel made a management decision that only I was fully qualified to make, I was terminated for "serious misconduct.” If the Captain cannot be trusted with making such a decision, that just leaves the company men and women behind the desks. Our industry operates on the rivers by the grace of public trust. With the environmental issues we face today, that public trust is shaky at
best, especially on the environmentally sensitive Upper Mississippi River.
After the Bayou Canot incident; the industry assured everyone that it was capable of policing itself. Out of that disaster emerged the "Responsible Carrier Program.” While painting yellow stripes around all the equipment and posting colorful warning signs all over the vessel is fine, anyone in any type of transportation business will tell you
safety starts with the maintenance and repair of the equipment.
It is no secret that the maintenance and repair at ACBL has been a long-standing joke with all of their vessel employees. So why should the Coast Guard and the general public be concerned with what is happening at ACBL?
This concern should arise because ACBL is not only the largest carrier on the inland waterways but also the second largest carrier of hazardous cargoes. This company needs to be reminded that using the inland waterways is an exercise in protecting the public trust not putting it at risk. I certify that this information is true and correct to the best of my knowledge and belief.
s/Capt. Kevin D. Kelly
Lake Pontchartrain, LA: Tugs & Tows Struck Causeway Bridge 16 Times
Too few mariners exhibit the moral courage of Captain Kelly in the face of certain dismissal and blacklisting. All too often fatigue-impaired mariners attempt to navigate tows that are beyond their capacity or the capacity of their boat to handle. Far too often they make their attempt in a fatigue impaired physical state that ends in a reportable casualty or “serious marine incident.” Some of these accidents are spectacular.
The public became aware of the impact of fatigue on vessel operators shortly after the Lake Pontchatrain Causeway in Louisiana was constructed and a few years after management began reducing crew size in the industry generally by eliminating cooks and deckhands. One errant tow took out a portion of the causeway and dropped a busload of passengers into the water with fatal results.
Since its construction began in 1955, the Lake Pontchartrain Causeway was struck sixteen (16) times according to Debbie Lopreore, Supervisor of Operations for the Greater New Orleans Expressway Authority. "However, this does not mean that portions of the 24-mile twin roadways were knocked down that number of times," she
cautioned. However, the scrapbook of newspaper articles and editorials she provided our Association showed a number of photographs illustrating the damage wrought by out-of-control towing vessels and barges. Several notable incidents involving towing vessels and the problems they illustrate are cited below. These incidents and the collision involving the towboat M/V Warren J. Doucet pushing a tow carrying approximately 27,000 barrels of crude oil in the nearby waters of the Mississippi River near the Greater New Orleans Bridge on
April 6, 1969 with Taiwanese freighter SS Union Faith tolled the loss of twenty-five lives and led to the enactment of the Pilothouse Licensing Act (Public Law 92-339) that first licensed towing vessel "operators" in 1972 – but clearly did not solve many of the related problems festering today.
Two Incidents in 1964: "Passed out," before barges hit span, first mate quoted.
[Source: Edited from the Times Picayune, June 17, 1964.]
The first mate of the tugboat that pushed two barges into the Lake Pontchartrain Causeway early Tuesday morning told state police he had "passed out" sometime before the accident and was not at the wheel of the tug. A Continental Trailways bus plunged into the lake, killing six people after the barges had ripped out four 56-foot sections of the bridge. Capt. Vincent H. Ebeler, Jr., commander of Louisiana State Police, Troop B, said first mate , 30, told him he "didn't even feel the crash." Ebeler quoted as saying he radioed Louisiana Material Co. shortly after taking over the wheel about 12:45 a.m. This said, was about the last thing he remembered until after the crash, which occurred about 1:30 a.m.
Capt. Ebeler said, however, that will be booked with negligent homicide after his release from Touro Infirmary. The local state police commander said he decided to book after obtaining a statement from , the tug's captain, that he heard yelling for him immediately after the impact.
Capt. said he went to the wheel right away, took over from and then gave him series of orders, which he followed without showing any signs of physical disability, according to Capt. Ebeler. The state police commander said 's condition did not seem to be serious and he was told by hospital attaches the man would be released soon.
Coast Guard Finds Tug Crew Inadequate.
[Source: Edited from the St. Tammany Farmer, Oct. 9, 1964.]
Captain was asleep. They were the only (two) men aboard at the time. The Coast Guard noted that had another man been on duty at the wheel, the accident might have been avoided. Findings revealed that the two men had been operating the tug by themselves more or less continuously over a period of 16 days. It was hinted neither man could have received adequate rest. The tug was owned by Ace Towing Co. of Gretna and was under charter to the Louisiana Materials Co. The
Coast Guard said the tug's owner and the Master of the vessel were responsible for the inadequate manning of the boat and the excessive working hours. An “at will” employer with the right to "hire and fire" must be held responsible for adequately manning the vessel while the vessel’s Master is responsible for establishing a legal watch schedule – something he can only do if the vessel is adequately manned.
Television Station Editorial.
[Source: WWL-TV Editorial, July 27, 1964.]
It seems like only yesterday – and it almost was – that this station commented on the Lake Pontchartrain Causeway and the awful tragedy of June 16th. Six lives were lost when two barges knocked 230 feet of roadway into the lake, dropping with it a bus carrying eight people. It was the fourth time that the bridge had been knocked out of business, but the first time any lives were lost. We ended the editorial with these words: Perhaps the blame can be placed. But this is not the answer.
This $51 million bridge will continue to be knocked down – and perhaps more people will be killed – unless laws are passed to regulate more stringently the operations of tugs and barges on the lake,(1) and to regulate the men who command these vessels."(2) Of course, we did not expect this prediction to be fulfilled so soon. But here we
are, only 41 days since the last tragic collision, and we have another. In June the man supposed to be steering the tug and two barges said he "blacked out." Last Saturday, when another tug and two barges crashed into the bridge – knocking out 200 feet of roadway – the man supposed to be steering told the Coast Guard investigators he had fallen asleep. And, passengers of a bus, which crossed that portion of the bridge just before the collision, reported that they could see no one in the pilothouse of the tug. Now in the context of logic and normalcy, it seems incredible that Saturday's accident could have happened at all. But then, it is just as incredible that the earlier collision should have happened, and six people killed. The Lake is so big – 600 square miles. The damages are so great – about $500,000 total for both accidents. The stakes are so tremendous. And yet, simply because one man "blacked out," and another fell asleep, tragedy, and chaos resulted. Now we talk about safeguards for the drivers on the bridge, and of radar, and other
precautions. But until something is done – and again, we are only repeating ourselves – until something is done to regulate, to license, to govern what kind of a man can operate tugboats and such on the lake, travel on this $51 million bridge will be like playing Russian roulette – purely a matter of changes whether you will get across or not.
Well, “something” was done. Congress passed the Pilothouse Licensing Act on July 6, 1972 and "grandfathered" existing industry personnel. Licensing regulations for towing vessel officers were tightened in
2001, but work-hours violations still continue. Local regulations passed by the State Legislature now govern approaches to the causeway.
Another Incident in 1974: Barge Knocks Out Causeway Section.
Captain and Owner Cite the Fifth Amendment.
[Source: Edited from the Times-Picayune, Aug. 3, 1974. by Emile Lafourcade.]
Both the Captain of the towboat Miss Andy and the owner firm's President took the Fifth Amendment Friday at a Coast Guard hearing on the boat's ramming of the Lake Pontchartrain causeway early Thursday.But a statement written and signed by Captain of Galliano, and introduced into evidence, indicated was asleep at the helm at least 20 minutes before his tow of empty barges struck the northbound span
of the causeway, creating a 252-foot gap. Two motorists – Tazille Charles Madison, 36, and Edgar E. Dillon, 41, both of New Orleans – died when the vehicles they were driving crashed through the gap and into the lake soon after the bridge was rammed. Dillon's brother, Wallace, 19, is believed missing in the crash wreckage. The Coast Guard hearing, which lasted four and a half hours, ended at 5:30 p.m. Friday with the hearing examiner, Lt. (j.g.) Richard C. Wigger telling Capt. , "I inform you that the Coast Guard will take action to
secure your testimony." He made the same statement to earlier in the hearing and again to Autry James Dufrene...of...Gretna,
president of American Tugs, Inc., owner of the M/V Miss Andy, when he refused to answer the examiner's questions on advice of his legal counsel. The boat's mate, Larry Stelly, and deckhand, David Knott, both of Arnaudville, were more talkative. Their testimony characterized American Tugs(1) as a loosely-run outfit lacking clearly defined lines of
communication and duties for crewmembers and with no set work or watch schedules. Both said that when they were hired (Knott was hired just over a week ago) they were not told of any specific duties they were to perform or at what time of day they were to perform duties. [(1)Refer to NMA file #M-190]
They said the matter of duties and their timing were left to the captain.
Stelly said watch duties for him and the captain ran as much as 12 hours at a stretch. He added that he is paid $40 a day with no accounting for the number of hours worked in a given day. Knott testified his workday averages 13 to 14 hours, adding that on some difficult duties he was assisted by Stelly or , whichever was not at the boat's wheel at the time.
Asked if a crew of three was sufficient to handle the boat's work load, Knott said three was "not enough.” The hearing progressed tediously at first as the hearing examiner and the attorneys asked numerous questions related to the M/V Miss Andy's log for the 48-hour period prior to the accident.
Lt. Wigger was trying to put together a picture of the pattern of activities aboard the towboat. Stelly testified that at the time of the accident he was dozing in the bunk room behind the boat's wheelhouse. Knott testified he was asleep below the deck at the time and did not know of the accident until Stelly woke him up a few minutes afterward, telling him to light a fire on the barge in an attempt to caution any motorists who might be headed toward the causeway gap. The hearing became punctuated with controversy and legal questions during testimony of the third witness, Lt. (j.g.) Terry L. Rice, the Coast Guard's investigating officer at the accident scene. He said he arrived on the scene shortly after 6 a.m. Thursday and soon after boarded the Miss Andy with a Jefferson Parish sheriff's deputy. He testified the deputy placed under arrest and informed him of his rights, adding that Lt. Rice also informed the captain of his rights, but encouraged him to answer his questions and sign a statement. He quoted as saying he came on watch at 2:30 a.m. Thursday just before the towboat passed the Florida Avenue Bridge over the Industrial Canal. That he piloted the boat past the Seabrook Bridge and into the lake. Stelly testified that the night was clear, that he could see lights on the causeway from Seabrook and then retired to his bunk. Lt. Rice quoted as saying his boat was traveling toward the causeway at four miles an hour. Lt. Wigger asked Lt. Rice to read the statement given him by and both 's attorney, William
Crull, and the attorney for American Tugs, George B. Matthews, strenuously objected to admitting the statement into evidence. Crull adding he was concerned about the "wide dissemination" the statement would be given if made public.
The objections were over-ruled and Lt. Rice read that the towboat had "cleared Seabrook and headed for the south draw" of the causeway.
He continued reading from the statement that "came in line with the draw and lined up the tow with the green lights on the south draw. I was about one and a half miles from the draw and then I hit the causeway and that's when I woke up." Asked what was 's apparent condition and general appearance when he (Lt. Rice) boarded the Miss Andy. Lt. Rice said was "very nervous" and was wearing a white shirt that was dirty and gray pants and "looked like he had been up a while."
Dufrene was then called to the stand, but answered Lt. Wigger's three questions with a Fifth Amendment declaration...
Tightened Local Regulations Now Govern Causeway Commercial Boat Traffic
[Source: U.S. Coast Pilot #5]
Notice to commercial maritime interests in Lake Pontchartrain. Local Regulations.
Effective July 14, 1988, the Louisiana Legislature passed and Governor Roemer signed into law LA. Acts (1988) No. 552, regulating navigational safety near the Lake Pontchartrain Causeway Bridges. Key features of this Act:
(1) Require all tugs, towboats, self-propelled dredges, jack-up barges, jack-up rigs and all self-propelled vessels of one hundred net tons or greater, or one hundred feet in overall length or greater, and all vessel flotillas of one hundred aggregate net tons or greater operating on Lake Pontchartrain to be equipped with Loran C equipment suitable for use with the Lake Pontchartrain Collision Avoidance Warning System (CAWS);
\(2) Establish a "prohibited zone" paralleling each side of the entire length of the Lake Pontchartrain Causeway Bridge and extending outward for a distance of one mile from the easterly and westerly outboard sides of the causeway bridge twin spans;
(3) Prohibit all privately-owned vessels within the classes listed in paragraph (1), above, from entering, navigating, mooring, or anchoring in any manner within the "prohibited zone," except:
(a) as required to navigate through the Lake Pontchartrain Causeway Bridge openings upon such course and upon such directions as may be given by the Causeway Bridge tender,
(b) as required in an emergency to protect against loss of life or property, or
(c) as otherwise permitted in accordance with permitting procedures set forth by the Act and the Rules and Regulations of the Greater New Orleans Expressway Commission;
(4) Provides for the assessment of a civil penalty in the amount of up to $1,000 per vessel per violation against the owner, operator, or charterer of any vessel within the classes listed in paragraph (1), above, which
impermissibly enters the "prohibited zone," or which enters the "prohibited zone" without the Loran C equipment required by the Act;
(5) Requires that all collisions, accidents or other casualties involving a vessel within any of the classes listed in paragraph
(1), above, be reported to the Greater New Orleans Expressway Commission within 48 hours if such casualty has resulted in
death or injury, or within 5 days, if such casualty resulted in property damage exceeding $200.
Tightened Requirements: Hours-of-Service Must Be Logged
Our Association asked Congress to require maritime employees to record in a vessel’s “Official Logbook” the hours that each mariner worked each day. Congress added these requirements at 46 U.S. Code §11304 in October 2010 and the Coast Guard gave notice in Marine Inspection Notice 03-12 on March 10, 2012 of their intent to
review (1) officer/seaman watch change outs, (2) hours of service for officers/seamen, and (3) documentation of accidents, illnesses, and injuries that occur during watch. Following an accident, a licensed mariner often is caught between a rock and a hard place between company policies and government investigators. A mariner must protect his personal interests, his license, and his job. Only through license insurance can a mariner ensure immediate access to a trained admiralty attorney to protect him from regulations he may not be fully aware of.
Reducing Crew Size
Cooks kept the boat crews healthier by preparing decent meals and improved sanitation by eliminating unnecessary hands in the food supply as cooking became everybody's job and maintaining the galley often a sadly neglected chore. The original “Call Watch” involved a crewman who was not burdened with a regular set of two six hour watches per day, but was on call to fill in all those non emergency needs such as when an extra lookout 10-was needed or an extra deck hand to lend a hand building or breaking tow. The original “Call Watchman”, sometimes called the “Utility Man” allowed the officer on watch to avoid waking up the off-duty crew for routine tasking. Today the “Call Watch” is simply usually the last hired and often youngest crewman who is already assigned a regular set of two daily six-hour watches and all of the extra work.
In the Lake Pontchartrain disaster the tow operator had fallen into a micro sleep, the tow was not underpowered. In other bridge allisions we have seen the deadly effects of both fatigue induced impairment and under powering all too often operating in tandem.
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