Thursday, August 9, 2012


Photo not the actual boat

An Industry That Eats Its Young
Because of the unbelievably harsh working conditions on so many work boats that operate uninhibited by collective bargaining that could soften these working conditions, new recruits for the industry such as “green deckhands” or mechanically inclined “wipers” and other manpower to fill positions in the engine room are becoming hard to find and even harder to retain.

 Young men sometimes are enticed by offers of good pay, good food, and a place to stay and often give the tugs and towboats a try but leave the industry after a single two-week to one month stint. There is a demand by industry management, the same short-sighted management that has created the harsh conditions in a non-union vacuum, to reduce apprenticeship training time in order to speed the 
development of licensed officers without which the companies can not legally operate. Generally, this is 
not a very good idea in an area that requires a high order of skills and where life and death can hang in the balance as a consequence of a moment’s slack job performance. 

 Here is the story of a motivated young 

deckhand who was attracted by the job, followed in the footsteps of his father, and was prepared to make 
almost any sacrifice to a career in the industry. Unfortunately, his apprenticeship ended before he lived to see the inside of the wheelhouse. Meet the late Joe Hulen.

Deckhand Crushed to Death in Fall From his Towboat

[Source: This case was reported by Nelson G. Wolff, Esq., Schlicter, Bogard & Denton, 100 South 4th Street, Suite900, St. Louis, MO 63102. Tel: 314.621.6115; Fax: 314.621.7151; e-mail:]

[Editorial Note: We redacted the names of individuals directly involved in this terrible tragedy since responsibility for the death of deckhand Joseph Hulen was that of company management and not the crewmembers. The lessons the crew members learned from this tragedy were learned “first hand.” If mistakes were made, their burden will be to live with them for the rest of their lives. However, our mariners and others can learn from the attorneys and forensic experts who commented on this accident and to whom we are indebted. We are indebted as well as to Joseph’s parents, Mr. and Mrs. William Hulen, who contacted our Association and supported us as we brought this matter to the attention of the Towing Safety Advisory Committee (TSAC) in Washington in March 2006 – at which time an executive from the
company accepted responsibility for the accident and the shortcomings it revealed.]
At a Towing Safety Advisory Committee (TSAC) licensing work group meeting in Houston, employers suggested that new regulations requiring new deckhands to “waste” a year and a half serving on deck before they became eligible to train for duty in the pilothouse were “excessive” and that some time period considerably shorter should be considered.
Captain David Whitehurst, representing our Association, firmly rejected any thought that time spent learning to be the best deckhand possible was a “waste of time.” He rejected any thought of reducing time in service based on
his more than 30-years experience on inland towing vessels.

Joe Hulen’s Hopes and Dreams

The case under review presents the needless and preventable death of a young man seeking a maritime career. The immediate and obvious cause of death was a fall overboard between two vessels during an equipment transfer. The Coast Guard investigated the accident and prepared its report, a copy of which we received under the Freedom of Information Act. This case arises from the death of Joseph Hulen, who was working as a deckhand for American Commercial Barge Lines (ACBL) on its towboat the M/V Wally Roller when he died in an accident on Nov. 2, 2002. Joe was only eighteen years old at the time of his death and is survived by his mother Lisa and father Bill. 

 The same company, ACBL employed Bill Hulen for a number of years as a Chief Engineer on a different vessel. Joe, who had just graduated from High School, hoped to follow in his father's footsteps as an engineer. His Mom and Dad told our Association how much he loved working on the towboats and that after only a few trips he announced to them that towboating was a career he wanted to excel in. At the time of his death, Joe had worked for ACBL for only a few months as a deckhand trainee. An Outline of the Accident The incident occurred on the Ohio River, between the states of Illinois and Kentucky. The towboat and its crew had "touched up," but did not tie off to a fleet of 15 barges. Just before the accident, Joe was standing on the towboat as it approached a barge on which the other deckhand was standing. As Joe was attempting to pass
a 150-foot coiled lock line from the starboard bow of the boat to the other deckhand on the barge, the towboat slowly drifted away from the barge at the stern allowing a gap to form between the towboat and the barge. After a failed initial attempt to transfer the line to the barge, it got tangled up between the crew members and Joe fell into the river.

 Joe struggled to escape the closing gap between the boat and barge but, because of his body weight and the weight of his equipment, he was not successful. Attempts by the other deckhand to pull him onto the barge also were unsuccessful. In his attempt to help Joe out of the water, the other deckhand failed to alert the Master of the towboat of his plight with his hand held radio. The Master apparently heard the "man overboard" cries and started to maneuver the boat back to the barge because he could not see the deck crew from his position in the pilothouse. In the meanwhile, other crew members were alerted to the emergency. At least one of them saw the scene and went back inside the towboat to alert the Master to the situation and also ordered the cook to awake the sleeping crewmembers for assistance. Before actual
additional rescue assistance was rendered, the Master allowed the boat to swing back toward the barge, slowly pinning and crushing Joe against the barge while the other deckhand was holding him.
Joe did not sink or drown; rather, he struggled to escape before and after the boat trapped his body against the barge.

 Eventually, the operator swung the boat away and Joe was pulled aboard the vessel and first aid started. He was transferred across the river to the Illinois shore where he was given further aid by EMT and transported to the hospital, but was pronounced dead upon arrival. At Joe’s funeral, the company tried to cover up its responsibility
by suggesting to the family that Joe’s death was “just an accident.” The Coast Guard Investigation and Report

The Coast Guard investigation reached three conclusions:

● That a briefing and discussion should have been held between the deckhands and the Captain so they could discuss possibly dangerous situations and ways to avoid tragedy.

● That ACBL failed to provide and ensure adequate communication between deck crew and the boat operator. The operator did not have visual contact with the crew and the hand-held radios were "useless" since the crew's work did not allow them a free hand to physically key the microphone.

● That ACBL failed to have a safety policy requiring that its boat be secured to barges before attempting line transfers. If the boat and barge had been tied off instead of being free-floating. there would not have been a gap in between for Joe Hulen to fall into. Bill Hulen sadly pointed to these three sensible conclusions. He pointed out that they were only advisory in nature and that the Coast Guard showed no further interest in taking steps to require ACBL to change existing practices. Despite these obvious safety violations, the Coast Guard did not fine or otherwise reprimand ACBL. 

 Our Association often requests copies of Coast Guard accident reports under the Freedom of Information Act. While these reports may be useful for a number of reasons, our mariners must understand that 46 U.S. Code §6308 states in part that “…no part of a report of a marine casualty investigation … including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence or subject to discovery in any civil…proceedings. In other words, the Coast Guard can investigate the accident for its own purposes – but  mariners or other parties at interest will have to conduct their own investigations and hire attorneys and take the
case to court if they want to learn facts and causes of injuries and deaths. It is easy to understand why many mariners view the accident investigation process as a sham – especially the required accident report form CG-2692 that mocks the reporting process. Our Association is making a major effort to bring the deficient personal injury reporting process not only to the attention of the Coast Guard and OSHA but also to Congress as well.(1) [(1)Refer to NMA Report #R-350-Y.]

 We often point to a report commissioned by the Coast Guard Research and Development Center in 1994 titled U.S. Coast Guard Marine Casualty Investigation and Reporting: Analysis and Recommendations for Improvement that really gets to the heart of the problem about accident investigation;
(1) although these problems for the most part still remain unresolved. The matter finally came to a head on May 20, 2008 in a hearing before the House Transportation and Infrastructure Committee as a result of a report by the Department of Homeland Security’s Office of the Inspector General (#OIG 08-51).(2) [(1)NMA Report #R-429-A, Rev. 1. 

(2)NMA Report #R-429-M.]

 Legal Challenges to Proving the Case

Numerous complex legal hurdles faced the Hulens in their quest for the truth. Shortly after telling the Hulens their son’s death was “just an accident” and then suggesting the barge line was not at fault, ACBL and its lawyers actually filed the first legal suit under an ancient maritime doctrine. It sought to exonerate or excuse the corporation from any liability for compensatory damages it had to the Hulens whatsoever or, alternatively, to limit
any liability it had to the mere value of its towboat.

 The Hulens were served with notice of ACBL’s lawsuit just days after the funeral and were told that if they did not file a legal claim within a short time period, they would be barred from doing so.
The Hulens were referred to St. Louis Maritime Attorney Nelson G. Wolff who had successfully represented the family of another ACBL employee who suffered a work-related death.(1) [(1)Refer to NMA Report #R-412.] Wolff successfully argued that ACBL should not be allowed to be free of liability or to limit the value of human life to the value of the vessel and that the Hulens were entitled to a trial by jury. The court eventually dismissed
ACBL’s case. 

 While this case was being contested, ACBL filed for bankruptcy protection and again attempted to have the Hulens’ case dismissed. Only after months of intense legal battles were the Hulens allowed to pursue their claim against ACBL to prove its responsibilities for their son’s death. Under the Jones Act, an employer is liable for compensatory damages caused in whole or in part by its negligence. A single claim inures to the surviving parents of an employee and the employee's estate, if the employee has no spouse or children. In this case, Joe was survived by both parents, Bill and Lisa Hulen, with whom he was living at the time of his death. 

 Under the law, Joe's parents, Bill and Lisa Hulen, are entitled to compensation for lost economic support that they reasonably expected to receive, loss of counsel, support, guidance and for the conscious pain, suffering, and emotional distress experienced by Joe before he died. No compensation is allowed for grief and bereavement. Joe had, in the past, and was expected in the future to have, provided some amount of economic support,
emotional counseling and guidance to his parents. The most significant component of damages available under the law in this case, however, was the conscious pain, suffering, and distress he experienced until the time of his death.

         Unimaginable Crushing Pain
One of our most revealing reports is a reprint of a Coast Guard document that provides useful statistics on the dangers inherent in the towing industry as measured by industry fatalities. This document contains statistics that should jolt many “green” deckhands who might consider a career in the towing industry. So, too, should the AWO/USCG Joint Quality Action Team report on deck crew safety in the inland towing industry released on Dec 30, 1996.(2) But, these reports are just statistics. Here is a sample of the pain resulting from the most minor misstep. [(1)NMA Report #R-351, Rev. 1. (2)NMA Report #R-428, Rev. 1.]

 The incident occurred at 10:30 a.m. and Joe was pronounced dead at 12:13. The autopsy report confirms that Joe’s chest and abdomen were crushed with hemorrhages of the forehead, eyes and face, bilateral multiple rib fractures and fracture dislocation of his pelvis, lacerations of the liver, small intestine and transverse colon. His
scrotum was distended and accumulated fluid consistent with acute trauma was noted. He had swelling and congestion in his lungs, consistent with a lost struggle to breathe and damage to the lungs. The cause of death was held to be asphyxiation due to thoraco-abdominal compression due to blunt trauma to the chest, abdomen and pelvis. In layman's terms, his body was crushed such that he was unable to inhale and exhale while pinned between the barge and the towboat. The Coroner concluded that Joe did not suffer any direct trauma to the head or face and that he remained conscious during the crushing process. 

 According to the various accounts of the incident, the period of Joe's conscious pain and suffering ranged from a few seconds to a few minutes. Undoubtedly, the fatal injuries were exquisitely painful and Joe experienced psychological distress from the moment he was knocked from his feet until his death, with a conscious awareness, over what must have seemed like an eternity to him, that he was in grave danger and that severe injury or death was  likely. An expert in pre-death terror opined that Joe would have experienced pre-death terror over a period as short as three seconds, including a "life review process," where, literally, his life and family would flash before his eyes. This distress and his pain and suffering represented the most significant element of damages in this case. 

                 Anguish of Joe’s Family
Lisa Hulen first heard of our Association almost two years after Joe’s accident. In her call, that best can be described as distraught, she and her husband simply could not understand why nobody appeared interested orconcerned about what happened to their oldest son. It was obvious that she and her husband Bill needed the services of a good admiralty lawyer.
At that point, I determined that they had hired an attorney, Nelson G. Wolff, Esq. of Schlicter, Bogard & Denton of St. Louis, whose success in handling difficult cases was chronicled by our Association on a number of occasions. The concern both Lisa and Bill spoke about was NOT about collecting any money for their son’s death. Their concern from day one was to discover the cause of their son’s death in order to raise awareness of how both the industry and the Coast Guard treated Joe’s death as if it were “business as usual.” Bill had a unique view from his
inside position as an Engineer for the same company that their attitude was that “deckhands are expendable commodities.” How long do you grieve for a lost son? The company answered that question rather bluntly by calling Bill a few weeks later suggesting that it was time he thought about going to work again – because they needed his services.
Instead, Bill chose to quit both the job and the industry and now works ashore at a construction job!

Grieving for Joe Was Only Half of Bill’s Burden

A significant precursor to Joe Hulen’s death occurred on August 28, 2002, just two months before Joe was killed aboard ACBL’s M/V Wally Roller. At the time, Engineer Bill Hulen, then was serving on ACBL’s M/V Charles Ditmar, Jr., when deckhand Charles Hamby drowned after falling from the towboat’s skiff while making crew change near Terrene Landing at Lower Mississippi River Mile 592.1.(1) Chad Hamby was only 26 years old and
had worked on the river just over a year. [(1)NMA accident file #M-550-A.] Bill was very upset about the accident and caustic about the length to which the company went to deny any responsibility for the accident. 

 Bill believed that Chad Hamby never was trained properly to operate the towboat’s skiff. After watching the way that the company lawyers handled the investigation following the accident, he
seriously began to question whether his son, Joe, was wise to stick to his plans of making a career in the towing industry. It is this nagging doubt and the thought that he might have been able to change future events that haunts him to this day. 

 This accident, that was so up-close and personal, coupled with the loss of their own son is what motivates Bill and Lisa Hulen to work to improve working conditions on towing vessels. Husband and wife  attended the U.S. Coast Guard’s preliminary public meeting on towing vessel inspection held in 2005 and spoke briefly about the accident and to point out that ACBL had, in a short period of time, lost three “green” deckhands to fatal accidents and had not taken responsibility for any of these deaths! 

 This, and not the desire to reap a huge posthumous cash award, motivated the Hulens to press forward in a lawsuit against ACBL and set the tone for
ACBL finally to accept responsibility for their actions. As a direct result of our Association’s discussion of the Chad Hamby accident with Bill Hulen, Captains Larry P. Gwin and David C. Whitehurst on our Board of Directors helped to prepare a detailed proposal that seeks to
require “Rescue Boat Training” for all crewmembers who serve on inland towing vessels because knowledge of small boats has been taken for granted in the towing industry for many years. In fact, this was the second fatality involving the capsizing of a skiff that our Association reviewed in detail in the past year.(1) 

We furnished this significant recommendation to the Coast Guard for consideration in the Towing Vessel Inspection rulemaking package. Unfortunately, to date, the TSAC Working Group composed mostly of AWO member companies appears to have ignored both the problem and our Association’s proposed solution. The Notice of Proposed Rulemaking (NPRM) for the Inspection of Towing Vessels issued in Aug. 2011 shows that most of our Association’s recommendations simply were ignored. [(1)Refer to NMA file #M-547.] 

Company Blames Joe for His Own Death

Facing a possible lawsuit, the ACBL lawyers closed ranks and asserted that Joe Hulen had negligently caused his own death. Interestingly, they apparently failed to inform their own Director of Safety and Training of this who, stated in a Deposition: “No, I wasn’t aware of that part of it, no.”(1) “Given the facts as – that I have reviewed them, I don’t know
if young Joe really did do anything wrong.” [(1)Andrew Cannava, Deposition, Oct. 27, 2004, p.49, 50.]

 Understanding there are different viewpoints, here is an account of the accident as presented by Mr. Cannava,  ACBL’s Director of Training, in his deposition:(1) [(1)Transcript, pgs. 54-58.]
“Given what I've read, and given what our investigation has shown, we were building a 15-barge coal tow on the Ohio River on the Kentucky shore across the river from a loading facility on the Illinois shore, at approximate location of Shawneetown, Illinois. “It was approximately 10:00 o'clock in the morning and on Eastern Time, and the Wally Roller was just finishing up  the tow, putting the last barges in tow shifting their lines around, preparing to face up to depart the area.

 “We were moving a lock line from one end of a barge in mid tow up to the break coupling in the tow, by the boat, because we – the Captain felt, and the way we train is that if we can move the equipment in the easiest way possible, that is the route we are to take. That is the decision making process that the crew undertakes, and this
time they chose, instead of carrying a line, the one single lock line they were going to move it on the head of the boat up from one end of the barge to the other. “Once they had loaded it onto the boat, the head of the Wally Roller on the starboard head, one deckhand walked up the tow and…Joe Hulen, the Probationary Deckhand, stayed on the boat and up to the next coupling. “By the time the boat got up to the next coupling, the other deckhand that was on the tow, had met the boat right there at the coupling, and they were in the process of offloading a line, one line, a break-coupling line, onto the tow.
“Mr. Hulen had picked up the line, and I think it's a little unclear as to whether it was the whole line or part of it, the head of the Wally Roller gapped out away from the tow, and that was done just at the same time that Joe was giving it a second try to pass the line over to (the other deckhand), and when saw that the boat was gapping  out away from the tow, he had reached over to push Joe back, because he saw his motion – he was in motion to give the line over to him. tried to push him back. At the same time Joe was trying to drop the line, but as he
twisted and tried to drop the line, he tripped on something. The report says he tripped on something, what, we don't know, and the line went on the deck, and he went down between the boat and the tow…
“…as the boat gapped out, just a little bit more, had jumped back a little bit and got down onto the deck,
stepping over a deck fitting, and laid down on the deck and reached over the side of the tow just a few feet back just from where Joe had fallen in; and he reached into the water and grabbed Joe by the collar, by his shirt, or by the life jacket strap on his life jacket, and pulled him back up and tried to swing him up. And all the while he had one hand on Joe, and the other hand on the coaming of the barge behind him as he was lying down, or on something
behind him to try to stabilize him, so he wouldn't go in the river, too.

 “Joe tried, along with , he knew had hold of him, and he was trying to swing his leg up onto thedeck of the barge, and from what I understand, he tried it a couple of times, and he couldn't get … between
and Joe they couldn't get him out of the water, pull him up over the side of the barge, and at the same time was hollering that we had a man overboard. The engineer had heard him. He came out, and he ran back inside, he being the engineer, ran back inside to call up to the pilothouse to say that they had a man in the river, and to try to get him to bring the boat back out, because he saw the boat was coming in on the bow. “And they didn't have him far enough out of the water, or far enough, and the boat came in and landed on Joe, crushing him between the head of the boat and the tow. He still had hold of him, and by that time [the mate] had arrived at the spot at the break coupling, and [the mate] helped get Joe out of the water and back up onto
the tow. They put Joe in a Stokes basket, a litter, put him on the Wally Roller and, at the same time, they had called over to the paramedics over in Illinois, and they had tried to go across the river as fast as they could to get him to some medical help.

             The Other Side of the Story

ACBL was the defendant in the lawsuit titled Estate of Joseph Hulen vs. American Commercial Barge Line. Although Mr. Andrew Cannava, the company Director of Safety and Training, had full access to company records he had not been at the accident scene. Only the boat crew was there and only (the deckhand, the mate), and the Engineer saw the event occur. The Captain from his position in the pilothouse could not see the events taking
place on the deck beneath him and had no posted lookout in place to inform him of the events that were unfolding. Bill and Lisa Hulen’s attorney had to reconstruct the evidence after the fact through “discovery” and, to do so, had to rely on the same evidence the company used, although with an eye toward identifying company fault. In preparing his case for trial, the Hulens’ attorney, Nelson G. Wolff, Esq., sought help from an extremely thorough and well-qualified forensic team affiliated with the American Admiralty Bureau operating in strict conformance with the Code of Professional and Ethical Conduct of the National Forensic Center.

 The forensic team made a number of significant points that we believe are significant for our mariners. Faced with these significant points, which provided substantial evidence of ACBL’s unsafe practices and policies, it had to admit liability and settle out of court on the eve of the trial for a substantial cash settlement. As a part of the
settlement, there are no limitations on disclosure. We believe that each of these points made by the forensic experts, above and beyond the conclusions reached in the Coast Guard accident report, have merit and present them below: [Editorial Note: Our edited, abbreviated, and annotated excerpts appears below.]

● Safe workplace. Section (654) of the OSHA Act states in part that “Each employer…shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees…” The company allowed certain “recognized hazards” (cited below) to exist on their workboats. Control and reduction of these recognized hazards was the duty of the owners and ship’s officers rather than an apprentice
deckhand just learning the trade.

● Trainee or “probationary” deckhand. Joe Hulen, who was only on his third trip, was considered to be and paid as a trainee. He was paired with a “more experienced” deckhand who was only on his fifth trip.

● No USCG certification. Since the Coast Guard does not require certificated and tested “Able Seamen” on western rivers towboats, there is no “third-party” competency certification of “deckhands.” The company alone
determines and assumes responsibility for rating an “experienced” or “supervisory capable” deckhand.

● Placement of barge in tow. The Captain allowed the box barge (i.e., the barge involved in the accident) to be returned to and inserted in the tow “backwards” with its lock line on the wrong end of the tow. As a result, this bulky line, weighing 100 lbs., had to be moved 200 feet to the other end of the barge. It was during this move that
the fatal accident occurred.

● Failed to secure towboat to barge before passing the line. This simple action would have taken less than a minute. Failing to do this allowed the towboat to drift away from the barge as Joe attempted to pass 100 lbs. of line across the
gap. The load was too heavy and the gap shouldn’t have been there. This was an unsafe and unnecessary hazard.

● Alternate methods of line-handling were available but were not used. The entire evolution was not adequately supervised by the mate, , who was in the general area at the time of the accident.

● Deckhands’ errors. Deckhand did not keep a careful lookout for dangerous conditions and failed to notify the Captain by radio that the towboat was slowly drifting away from the barge. Although there was a delay while Joe made a second attempt to pass a smaller length of line across the gap, did not keep a lookout for the gap or tell the captain of this delay.

● Supervisory error. Although testified that Joe may have turned his back to the water while preparing to pass the line across the gap, he did not testify that he ever admonished Joe (his trainee) that this was an “unsafe practice.”

● Violated company “man overboard” procedure. Page 60 of ACBL’s deckhand training guide called for to contact the pilothouse immediately by radio twice to alert the Captain of the situation. Only then should he have attempted rescuing Joe Hulen. As soon as he dropped to the deck with one hand holding the barge coaming and one hand outstretched to Joe, he deprived himself of the ability to use the “push-to-talk” button on his handheld radio. Given his deposition testimony under oath, there would have been ample time for the Captain to control the boat to protect Joe in the water.

● Shouting and yelling was futile. ’s attempts to alert the Captain or others by yelling were inadequate. This may have been a result of inadequate and ineffective training by ACBL and panic that resulted from the situation and
training inadequacy. Common sense and minimal experience on a towboat this size should demonstrate that the pilothouse can be a noisy place with all sounds from radios and other sources competing for attention.

● Inadequate supervision by the mate. failed to conduct any job safety briefing as set forth in ACBL’s “Job Briefing” guide.

● Mate was not present as a lookout for the line transfer task. The line transfer was taking place in a blind spot relative to the pilothouse. Since and Joe Hulen were both fully engaged in passing this bulky line from boat to barge, the mate should have been on the spot to coordinate with the Captain.

● The Captain failed to maintain control of the boat. The Captain did not keep the boat against the barge until the line transfer was safely completed.

● The Captain allowed the transfer to take place in a blind spot where he could not observe the activity. He did not call for the mate to serve as his lookout during the transfer. He failed to question the delay in making a transfer that he later testified should only have taken 1 to 2 seconds.

● The Captain’s response to finally being alerted to an unusual situation was unsafe and improper. He
testified in his deposition that one-minute or so before he received an intercom alert from his Chief Engineer, he
heard yelling that indicated something was wrong. At that point, he should have communicated with the crew to assess the situation before bringing the boat back against the barge. Instead, he reacted by closing the gap, which is an illogical and inexplicable reaction for an experienced operator to make. [Ed. Note: This evaluation is tempered by subsequent comments recited below.]

● ACBL improperly allowed to supervise and train Joe Hulen. only had served as a deckhand for
5 to six trips according to the Safety and Training Director’s testimony. His training should have been left to a more experienced deckhand.

● ACBL is responsible for work practices that likely allowed fatigue to contribute to the incident. The Captain had been allowed to work on the boat for almost 60 consecutive days while (name redacted) had worked over 30 consecutive days. Although licensed officers are limited by law to 12-hour workdays, no such limitations apply to either
deckhands like or non-navigating mates like . In fact, the AWO’s Responsible Carrier Program has
institutionalized the industry’s use of a 15-hour day in spite of years of protest from our Association and other mariner organizations. In fact, in 2000 our Association published the book Mariners Speak Out on Violation of the 12-Hour Work Day containing 57 letters from mariners exposing widespread abuses of work hours. We distributed several hundred copies to the Coast Guard, Congress, and to national and international labor organizations.

● Joe Hulen was assigned to the “call watch” at the time of the accident. This meant that his workday was subject to irregular breaks instead of the standard routine of 6 hours on duty followed by 6 hours off duty around the clock. The call watch, in addition to the 15-hour workday in this industry is a real travesty whose scope our Association revealed to the public in two reports.(1) [(1)NMA Reports #R-370-G, Rev. 1 and #R-401.]

We hope that Congress will respond to these appeals to remedy abuses as pervasive in the 21st century as those revealed by Richard Henry Dana in Two Years Before the Mast in the 19th century.

● The “call watch” abuse is a result of improper manning. If there is a “two-watch” system, there should be a full crew to stand each watch. It is clear that this simple maneuver that turned deadly required three men on deck under all the circumstances of that maneuver. However, the company allowed one man, Deckhand Trainee Joe Hulen to be used on both watches – which really defines the true meaning of the “call watch.” The company thereby saved the wages of one deckhand by using their most junior, most low-paid, and most vulnerable “green” deckhand on both the “front watch” and the “back watch.” While this may provide more and a greater variety of training for a
new man, it also expects more in the way of alertness and stamina. Deckhand trainees, by whatever name they are known, should be supernumeraries and not treated as “cannon fodder” to be awarded a small pay raise if they survive the experience.

● Clearer heads might prevail if everybody involved had not been obviously fatigued. Fatigue appeared to be a contributing factor in this accident and a growing menace to the public as reduced crew size is imposed on an already-stressed two-watch system. Any employer is free to grant crews on towing vessels an 8-hour, three-watch system. Yet, there is only permissive authority in the regulations to impose the two-watch system. The two watch
system maximizes profits by reducing overhead by eliminating about four jobs aboard a typical line-haul towboat. The major savings extracted from the system today are the elimination of a second Pilot, one of the highest-paid crew members. Today, there has been an overall reduction in crew size so that, on average, boats carry about one to four less crewmen than vessels under the two-watch system in the past. Yet, there has been no real change in the technology of this type of towing that would eliminate the tasking previously performed by the
missing crewmembers. To the extent that fatigue contributed to this accident, company management practices imposed it, Joe Hulen died for it, and his mother and father both had the guts to stand up and oppose it.

The Expert’s Summary

Maritime expert, the late Captain Jay Disler (1941-2006), a longtime member of our Association, developed these professional opinions:
The case under examination presents the needless and preventable death of a young man seeking a maritime career. The immediate and obvious cause of death was a fall overboard between two moving vessels. But, as demonstrated in the body of this report this fall was not a simple act of carelessness or inattention. Joe Hulen died because he was overburdened by an awkward load, his superiors were inattentive to the evolving hazard forming next to him as a gap between the vessels widened.
His superiors deviated from standard procedure, and it is highly likely that these deviations and inattentions were at least in part the result of fatigue. Fatigue in this case was induced by work practices imposed by management. The work method chosen that failed to wait for a secured closure of the two vessels responded to
economic pressures on operational tempo that was described in the body of this report and an admitted absence of relevant management policy. On its face, this is a simple fall overboard, one man dead with little relationship to other cases or impact on society. However as demonstrated within the body of this report, this case is a tragic example of a larger safety problem; rampant in the inland towing industry. This problem manifests itself in crew injuries, collisions, and bridge allisions, often with large numbers of deaths Without the introduction of new technologies, it is unsafe to attempt serious reductions in deadhead time while simultaneously reducing crew size, increasing crew working hours, and increasing tow size. All of these cost saving
and profit enhancement measures taken without consideration of this effect on each other have, and continue, to drastically diminish safety margins on the inland navigational system.

The new technologies that have been introduced have not decreased the need for labor. Automatic plotting radar, GPS, and bridge-to-bridge radios have only increased the tasking in the pilothouse, yet the pilothouse is still manned by only one licensed officer at a time. We still build tows with the same tools and rigging as 50 years ago, but now we do it with half the workers while the barges are growing larger. Labor unions, the traditional watchdogs of abusive practices, in this field are virtually extinct. The major regulator, the U.S. Coast Guard is distracted from its Marine Safety mission by a growing list of high priority homeland security missions.

The courts are the only place where this trend can now be documented, described, and brought to the attention of the industry, the last power with any real ability to level the playing field in favor of increased safety that means a retreat from some of the more onerous crew reductions, and operational practices. 

 Fortunately, as a result of the hard-fought litigation against ACBL, Bill Hulen’s attorney and his maritime expert, the complete picture of responsibility could be revealed and corporate accountability be compelled. The death of Joseph Hulen was not an isolated event, but an exemplary event that warrants serious attention, analysis,
and publication of the results.

A Message to Mariners from Nelson G. Wolff, Esq.

As Capt. Disler mentioned in his report, “the courts are the only place where this trend against safety in the industry can be brought to the attention of the industry, the last power with any real ability to level the playing field….”

Unfortunately, meaningful access to the courts and the opportunity to achieve the potential for reform depends on injured workers finding legal counsel who is experienced with the nuances and challenges of the complex law that governs mariners. The only thing more unfortunate than the injury or death of a maritime worker is the failure to obtain
compensation and lost opportunity to send a message to the industry in a language that it can understand – money. I appreciate the opportunity you have afforded me through your media to communicate these results in hopes that other workers will not be deprived of their right to compensation and that industry safety can be improved through lessons learned through hard ball litigation and court judgments. Hopefully, it will result in fewer such deaths/injuries, whether be by increased, effective regulation or through cost management at the company level.

1 comment: