Overdue Aids to Navigation
By Rear Admiral Frank D. Higbee, U. S. Coast Guard (Retired), Consultant, Maritime Affairs
The recent, fog-shrouded collision between two tankers under the Golden Gate Bridge has had one beneficial result—it has focused attention on the fact that the world’s merchant fleet today operates with a minimum of traffic regulations and aids to navigation. This fact, coupled with the projection that the World’s tanker fleet will grow from the current 4,000 tankers to some 8,000 within the next decade, gives rise to the question—is everything being done to prevent collisions and strandings on the Seven Seas?
It is a true anomaly when every taxicab driver in San Francisco can talk to each other by radiotelephone, but the captains on the two tankers underneath the Golden Gate were unable to establish communication.
The Coast Guard introduced legislation (Bill S. 1658) on 1 May 1967 to require the use of bridge-to-bridge radiotelephone on vessels in U. S. waters. This bill has been reintroduced at every session since that time. President Nixon in his message to the Congress included this bill in the package of important unfinished business that he urged the new Congress to enact.
The use of radiotelephones in ships has been common on the Great Lakes for over 30 years, and has proven to be one of the most effective ways to prevent collisions. Radar by itself is just another aid to the navigator unless it is supplemented by radiotelephones or an automatic plotter so that ship’s officers can immediately determine the other ship’s course and speed.
Following World War II, when radar was first installed in the world’s merchant ships, the theory was advanced that there would be no more collisions and all that was necessary was to equip vessels with radar. They would then, it was assumed, see each other on the radar scopes and stay out of each other’s way. After a number of years, a phenomenon was recognized, known as the “radar-assisted collision.” That is to say, both vessels involved in a collision were quite often equipped with radar. It was then understood, after bitter experience, that radar, in and of itself, was no panacea.
Recent collisions have repeatedly demonstrated that bridge-to-bridge communications can prevent collisions. In 1968, in the lower Mississippi, the African Star met the towing vessel Midwest Cities pushing two tank barges loaded with oil. The primary cause of the collision was the failure of the vessels to agree on a method of passing. Why was there failure to agree? Both vessels were equipped with radiotelephones, and although the pilot of the African Star had attempted to contact the Midwest Cities, just as the master of the Oregon Standard attempted to contact the Arizona Standard, there was no response. It was impossible for them to talk because each was on a separate frequency. Twenty-one people perished that night in a fiery collision on the Mississippi River—21 who might have lived if the vessels had been able to communicate by voice radio.
About a year later, in April 1969, another spectacular collision occurred on the Mississippi, just upstream of the New Orleans bridge. The freighter Union Faith collided with one of the three tank barges being pushed by the tug Warren C. Doucet. Again, both vessels were equipped with radiotelephones, but could not talk because they were on different frequencies. Again, the result was tragic—two vessels sank and 25 people died in an accident that also might have been avoided. It is apparent from the collisions cited, that delay in the passage of this bill can only result in further disasters.
Another area where it has been demonstrated that immediate legislation is needed is that of traffic control. In 1969, the Coast Guard introduced the Ports and Waterways Safety Act. It was reintroduced at this session of the Congress as Bill S. 698. President Nixon also included this bill in the package of “must” legislation which he urged the new Congress to enact. If enacted, this Act will give the Coast Guard broad authority to control movements of foreign flag vessels as well as U. S. vessels, and establish traffic systems which will help guide vessels safely through congested ports, such as San Francisco, New Orleans, Houston, and New York.
The enactment of the Ports and Waterways Act will have a direct effect on the scope and effectiveness of future marine traffic systems. The Coast Guard’s only authority over harbors now is based on the Magnuson Act, which concerns itself with security and sabotage. For example, if the Coast Guard had attempted to order the Arizona Standard to remain outside the harbor and the Oregon Standard to remain at the pier until the fog lifted, it would not have had such authority. The need for traffic control in congested U. S. seaports, with an ever-increasing volume of traffic and with more and more vessels loaded with petroleum products and hazardous materials, is imperative.
The recent San Francisco collision also pointed out the antiquated methods of plotting now used by the world’s seafarers. In the same era where airliners are equipped with the latest electronic navigational equipment, ships’ navigators still must plot approaching ships’ courses and speeds with the tools used in the 18th century. On a dimly lighted bridge with a multitude of routine tasks to do, the merchant ship’s watch officer is expected to find time to laboriously plot with a grease pencil on a piece of plastic a triangular solution to determine the other ship’s course and speed. The state of the art has already produced electronic plotting devices that can be attached to any radar, at cost of less than $50,000, which will give an instantaneous course and speed of up to 40 targets. Less than a handful of the world’s merchant ships, however, are equipped with this device. Insofar as navigational procedures, today’s merchant navigator is navigating as he might have done a half-century ago on a coal burning freighter moving at eight knots.
The fourth important item on which the Golden Gate collision focused attention was the use of sea lanes for merchant shipping. At the present time, there are approximately 50 traffic lane systems established on the Seven Seas. These are voluntary systems, however, and there is no penalty if a ship’s master decides not to use the sea lane system and go against traffic. The fact that three collisions have occurred recently in the Dover Strait has required the British government to consider seriously whether to recommend that the use of traffic lanes in Dover Strait be made mandatory. With a quantum jump in tanker traffic predicted for the next decade, the time may be at hand when some international body should require compulsory sea lanes for maritime traffic.
Seafaring history has shown that every maritime disaster has initiated an improvement in maritime safety. The Titanic resulted in the international ice patrol; the Morro Castle resulted in changes in passenger lifesaving equipment; and the Yarmouth Castle resulted in international requirements for the use of fire resistant materials in passenger ships. The world hopes that the Arizona Standard-Oregon Standard disaster will see the immediate passage of the Bridge-to-Bridge Radiotelephone Act and the Ports and Waterways Safety Act. In addition, it is hoped the international shipping community will soon require the installation of electronic radar plotters on every merchant vessel over 15,000 gross tons, and the mandatory use of sea lanes.
When is a Vessel Unseaworthy?
By J. Warren Giles, Member of the Bar of New York, Chicago, and Washington, D.C.
It seems preposterous to ask a question of naval officers such as the title of this Professional Note, but we are talking here about injuries received by seamen because of the unseaworthy condition of the ship.
The U. S. Supreme Court had occasion in 1970 to review a decision of the U. S. Court of Appeals involving a longshoreman employed by an independent stevedoring contractor, who was injured while loading cargo on board a ship. He brought his action for damages against the respondent, alleging that his injuries had been caused by the ship’s unseaworthiness.
On the day of the injury, the ship was moored to a dock in New Orleans, receiving cargo from a barge alongside. The loading operation was being performed by the man in question and his fellow longshoremen under the direction of their employer. Some of the men were on the ship, operating the port winch and boom at the No. 2 hatch. The aforesaid man and others were on the barge, where their job was to break out the bundles of cargo by securing them to a sling attached to the ball each time it was lowered from the ship’s boom by the winch operator. On one occasion, the winch operator did not lower the ball far enough. Finding the sling beyond his reach, the same man motioned to the flagman, standing on the deck of the ship, to direct the winch operator to lower the ball. The winch operator then lowered the ball, but too far and too fast. The sling struck the petitioner, knocking him to the deck of the barge, causing injuries. Neither before nor after the occurrence was any difficulty experienced with the winch, boom, ball, sling, or any other equipment of the ship or her cargo. Was this ship unseaworthy?
The Supreme Court said “No.” The court pointed out that the doctrine of liability based upon unseaworthiness has experienced a most extraordinary expansion during the 25 years. The Court’s decision in some of these cases has been severely questioned by dissenting justices and law writers. The court here accepted, as fully settled, that a shipowner’s liability for an unseaworthy vessel extends beyond the members of the crew, and includes a longshoreman such as this injured man. The court also said that it was settled, that the shipowner is liable though the unseaworthiness is transitory and though the injury be suffered elsewhere than on board the ship. The case here goes to the very definition as to what is seaworthiness.
Liability, based on unseaworthiness, is wholly distinct from liability based on negligence. The reason, of course, is that unseaworthiness is a condition, and how that condition came into being—whether by negligence or otherwise—is irrelevant to the owner’s liability for personal injuries resulting from it.
EDITOR’S NOTE: The Supreme Court upheld a ruling by a lower court that a shipowner is not liable for injuries accidentally caused to one crew member by another. In 1964, a dock worker was injured seriously by a sling lowered too quickly by a winch operator. In his lawsuit against the shipowner, the dock worker contested that the ship instantly was rendered unseaworthy by negligent handling of the equipment. But the majority opinion of the Supreme Court said that it could not hold the shipowner “. . . liable for a third party’s single and wholly unforeseeable act of negligence.” Marine Engineering/Log
The court pointed out that it had emphasized this basic distinction in the case of Mitchell v. Trawler Racer—362 U. S.—539. In that case, the unseaworthy condition causing the plaintiff’s injury was a ship’s rail made slippery by the presence of fish gurry and slime. The court held in that case that the shipowner’s actual or constructive knowledge of the temporary unseaworthy condition is not an essential element of the seaman’s case. The court also said that a shipowner’s duty to furnish a seaworthy ship is absolute, and is not limited to any concepts of negligence and that liability of the shipowner for a temporary unseaworthy condition is not different from the liability which attaches when the unseaworthy condition is permanent.
The Trawler Racer case involved the defective condition of a physical part of the ship herself. But as the court pointed out, the scope of unseaworthiness is not limited to that condition alone. Her gear might be defective, her appurtenances might be in disrepair, or her crew might be unfit. The number of men assigned to perform a shipboard task might be insufficient. The method of loading her cargo, or manner of its stowage, might be improper. For any of these reasons, or others, a vessel might not be reasonably fit for her intended service.
In the principal case here, however, the thing that caused the injured man’s injuries was not the condition of the ship herself, her appurtenances, her cargo, or her crew, but the isolated personal negligent act of the injured longshoreman’s fellow employee.
The court sums it all up this way: “To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions.”
In the Trawler Racer, there existed a condition of unseaworthiness, and the court held that it was error to require a finding of negligent conduct in order to hold the shipowner liable. They said this case was the other side of the coin. It would be equally erroneous here, where no condition of unseaworthiness actually existed, to hold the shipowner liable for a third party’s single, and wholly unforeseeable, act of negligence. But with all this logic, there were four dissenters on the court who thought the case should be decided on the authority of Crumadey v. J. H. Fusser—358 U. S. 423 (1959). Justice Harlan expressed the fear that the action of the majority in the case at bar “. . . can only result in compounding the current difficulties of lower courts with this area of the law.” We agree with the majority opinion and its inescapable logic. It is clear that the owner of a ship is not obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel suitable for her intended service. That, indeed, is a seaworthy vessel, and if proven unseaworthy by an injured seaman, recovery is allowed.
Above and Beyond . . .
By The Honorable John W. Warner, Under Secretary of the Navy
Napoleon is credited with saying “Give me a trunk full of medals and I will win any campaign.” In this spirit, he established the French Legion of Honor in 1802 for bravery and merit without regard to rank. The recognition of feats in battle, however, dates well beyond this time. Records dating back to the Egyptian Pharaoh about 1500 B.C., mentioned Golden Flies that were awarded as decoration and honor. In the United States, the first such award was what is now the familiar Purple Heart, created in 1782 by General George Washington, and originally called the Badge of Military Merit. It was designed to recognize the gallantry and heroism of soldiers, but was awarded in only three instances during the Revolutionary War.
The primary purpose of any decoration is to offer tangible and visible recognition. Military decorations are awarded for both acts of heroism and meritorious service or achievement. When used discriminately, decorations can provide a unique incentive and can also contribute to military effectiveness. It is imperative, however, that recognition be as equitable and as uniform as possible within the Department of the Navy thereby posing a continuing challenge to commanders at all levels.
In spite of the common belief that medals and awards are inseparable with our military history, actually no medals were awarded by the Navy Department until 1861. In that year, the Medal of Honor was first authorized by Congress at the request of the Navy Department, and though the requirements for its award were substantially what they are today, it could only be granted to enlisted men. Officers were not eligible for any decorations until 1915. Reward for heroic performance by officers was limited to Letters of Commendation and Appreciation and made a part of their personal records.
The Distinguished Service Medal and the Navy Cross were added to the list in 1919. To honor those with exceptional service in World War I, however, authority to award the medals were made retroactive to April 1917. The Navy Cross was originally designated for “. . . heroism and distinguished service not of a character to justify the Medal of Honor or Distinguished Service Medal . . . ,” and it remained third in the hierarchy until 1942. The Distinguished Flying Cross was added in 1926.
When World War II began, there were still only four decorations available to Navy personnel. During the first four months of World War II, 16 Medals of Honor and 183 Navy Crosses were awarded. It was soon realized that other levels of awards would have to be created to accommodate the growing numbers of deserving Navymen. The only way to avoid permanent depreciation of the highest awards was to introduce lesser ones. In 1942, six awards were approved by the Navy. First, the Silver Star, which the Army had approved in 1932, was extended to the Navy in August. The criterion for this medal was for gallantry in action not sufficient to justify the Navy Cross. The Navy Cross was then restricted officially to combat action only, although this restriction was not invariably observed even to the end of the war.
A Navy and Marine Corps medal for noncombat heroism, analogous to the Soldiers Medal approved by the Army 'n 1932, was also introduced. This filled a definite need, although the “noncombat” feature was not always fully grasped or emphasized.
It then became desirable to create a decoration primarily for meritorious service rather than for heroism. This would be junior to the Distinguished Service Medal, and thus protect the high standing of that award. The Legion of Merit was, therefore, approved late in 1942. It was originally conceived as a decoration comparable to the Legion d’Honneur, awarded to distinguished foreigners and American citizens for outstanding and distinguished service over comparatively long periods. Instead, it came to be interpreted as a means whereby military personnel could be accorded recognition for exceptionally meritorious service based upon the degree of responsibility involved. The degree of responsibility concept was not well defined and, despite announced Navy Department policy emphasizing recognition for enlisted men and lower commissioned grades, only 10% of the 4,066 Navy Legion of Merit medals awarded in World War II were made to enlisted men and junior officers.
A Purple Heart medal, for wounds received in combat, was adopted in December 1942, after considerable discussion. General Washington had established this decoration to “. . . cherish a virtuous ambition in his soldiers as well as to foster and encourage every species of military merit.” As a result, “unusual gallantry,” “extraordinary fidelity,” and “essential service in anyway,” were indicated as a basis for an award. When this decoration was revived in 1932 by the Army as a tribute to General Washington on his 200th birthday, the criteria was stated as the performance of “. . . any singularly meritorious act of extraordinary fidelity or essential service.” Following the creation of the Legion of Merit in 1942, meritorious service was eliminated as a basis for the Purple Heart. It then became an award given only for a wound received in action against an enemy, or, as a result of an act of the enemy.
The final medal established in 1942 was the Air Medal, to be given in recognition of heroism and meritorious service or achievement in a lesser degree than required for the Distinguished Flying Cross. In addition, the Air Medal was awarded for exposure to aerial combat. This award has become known as the Strike/Flight Air Medal. In World War II, five strikes against the enemy or ten flights in a combat zone where enemy anti-air threat existed, were required for eligibility. In Korea, the criterion was raised to ten strikes or 20 flights. The same standard has prevailed in Vietnam for aerial combat missions.
Eligibility has been extended to include support, combat patrol, and aerial ASW missions, but 50 such flights or 240 flight hours are required. Because of the peculiar type of flight operations in Vietnam, generated by the rapid turnaround-times of jet aircraft and helicopters, it is not unusual for aircrews to accumulate 50 Strike/Flight Air Medals in one tour of duty in the Marine Air Wing or in a shore-based naval air unit. Carrier pilots and air crewmen are able to accumulate ten to 20 Strike/Flight Air Medals in one deployment to the Western Pacific.
Even in this day of digital computers, the situation is unwieldly at best and threatens the integrity of the awards system. It would be unfair to change the criteria during the Vietnam conflict, but the whole question of the strike/flight awards criteria should be reviewed at the conclusion of hostilities in this war.
The Bronze Star Medal was first proposed by General George Marshall to provide recognition to army troops engaged in ground combat. He intended the award to be comparable to the Air Medal, but in recognition of the fighting spirit of the “. . . infantry riflemen who are now suffering the heaviest losses, air or ground, in the Army and enduring the greatest hardships.”
It is interesting to note that the Bronze Star, as we know it today, has not been used as originally intended. The Navy questioned the need of the Bronze Star, and introduced the Navy Commendation Ribbon instead, which was established by the Secretary of the Navy in early 1944. The Navy ultimately yielded to the Army’s desire, and agreed to the proposed Executive Order for the establishment of the Bronze Star, also approved in 1944. As a result, the Navy ended up with both the Commendation Ribbon and the Bronze Star, which was a higher precedence award. Both are awarded either for acts of heroism or excellent performances of duty. In 1945, the Army decided to follow suit with the Navy, and established the Commendation Ribbon. The Navy Commendation Ribbon was later changed to the Navy Commendation Medal, in order to enhance its prestige and to provide for a medal to accompany the ribbon.
The Secretary of the Navy Commendation for Achievement—later renamed the Navy Achievement Medal—was approved in 1961. This is a most important award, because it was conceived solely for the recognition of junior officers—lieutenant commanders and below—and enlisted men for heroic or meritorious achievement. This medal has come into extensive use for the purpose intended.
The Meritorious Service Medal was established by an Executive Order in 1969 as a noncombat award, largely through the foresight of Vice Admiral William E. Gentner, U. S. Navy, then Senior Member, Navy Department Board of Decorations and Medals. This award fills the gap between the criteria for the Legion of Merit and the Navy Commendation Medal, thereby avoiding the tendency to downgrade the Legion of Merit or upgrade the Navy Commendation Medal. With the Meritorious Service Medal, which is comparable to the Bronze Star’s position between the Silver Star and the Navy Commendation Medal for combat awards, the prestige and criteria of both the Legion of Merit and Navy Commendation Medal have been re-established.
The most recent award, the Combat Action Ribbon, was established in 1969 to recognize the exposure of the Marine Corps Troops, hospital corpsmen, riverine personnel, and any others who have participated in a bona fide firefight. Since the Combat Action Ribbon corresponds to the Strike/Flight Air Medal, only one Combat Action Ribbon will be awarded to an individual in a war.
The Navy Department’s traditional philosophy concerning awards has been the careful preservation of their prestige and dignity. Consequently, the Navy and the Marine Corps have been historically restrictive in comparison to other Services.
The most significant developments in awards came as a result of the “Anderson Board” in 1966. An ad hoc committee, headed by Admiral George W. Anderson, U. S. Navy, former Chief of Naval Operations, was convened by then Secretary of the Navy Paul Nitze to review Navy policies regarding heroic and meritorious performance. Notable among the implemented recommendations were: the revision of the Board of Decorations and Medals to include flag leadership; the establishment of the Meritorious Unit Citation; the replacement of stars by arabic numerals for air combat awards; and the general modernization of the awards process.
Vice Admiral Gentner, in August 1967, became the first flag officer to head the Board of Decorations and Medals following the findings of the Anderson Board. Under his leadership, two noteworthy accomplishments were made—the establishment of the Meritorious Service Medal and the introduction of automatic data processing in the handling of awards. Admiral Gentner retired in June 1969, and has been replaced by Rear Admiral Samuel R. Brown, Jr., U. S. Navy (Retired).
The Board continues to function at a quicker-than-normal pace, to keep up with the continuous requests to honor those dedicated men and women who have proven that, “Uncommon valor is a common virtue.”