Bouchard Ordeal Evokes 19th Century Supreme Court Decision

Sal Mercogliano
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February 19, 2020
File Photo: Kim M. Bouchard. Credit: Williams

By Salvatore R. Mercogliano, Ph.D.

On July 7, 1895, the barque Arago arrived in San Francisco with four of its crewmembers in irons.  The deckhands had jumped ship while in Portland, Oregon prior to the ship embarking on a cruise down to Chile.  The master of the vessel signed out warrants for their arrest and had the men returned to the ship, but they refused to work.  Upon arrival at the Golden Gate, he turned them over to the authorities for breaking their shipping articles. The case worked its way through the courts on the legality of a justice of the peace delivering the crewmembers to the master of a vessel, with a final decision determined by the Supreme Court on January 25, 1897 in Robertson v. Baldwin 165 U.S. 275, better known in history as the Arago Decision.  

A hundred and twenty-three years later, the crews on board the tugs Kim M. Bouchard and Danielle M. Bouchard, along with other tugs of Bouchard Transportation Company,  find themselves in a similar situation. Much like the crewmembers of Arago, those on board the two tugs find themselves prisoners upon their vessels.  In this case, it is not the master of the tug keeping them on board. Instead it is the Coast Guard’s Captain of the Port who have threatened the crew with felony charges and the loss of their merchant marine credentials if they abandon the vessel.   

The two tugs have been held out at anchorages since November 26.  Bouchard Transport experienced financial issues in the past, and this latest round resulted in the ships being told to anchor and await further orders.  Not only did those orders not arrive, but neither did pay for the crew after January 1, according to a local 12 News report citing an anonymous crew member. A month later, two crew apparently paid $1,100 to have a launch pick them up in Sabine Pass and return them to shore, while the remaining mariners all threatened to leave the ship as their 35-day tours ended.

In response to this, Captain J. M. Twomey (USCG), Captain of the Port of Port Arthur, issued letters to the masters on February 10, 2020. Citing the Code of Federal Regulations, he mandated that the ships maintain proper watches to safeguard the tugs and their cargoes. Violation of the order could result in a civil fine of $94,219 and a Class D felony, punishable by up to six years in prison and a fine up to $250,000 per individual.  In Port Aransas, Barbara E. Bouchard received a similar notice, but she was pier side and not at anchor.  It is probable that all other Bouchard vessels were given like warnings.  

See Also: Bouchard Responds to COTP Orders

At the end of the nineteenth century, the Supreme Court heard the appeal from the mariners of the Arago.  The Sailors’ Union of the Pacific funded their suit through the local courts, to its final appeal in Washington D.C.  The question before the court was can a master have a mariner arrested for breaking their contract? The decision handed down by the justices stated: 

Insofar as they require seamen to carry out the contracts contained in their shipping articles, are not in conflict with the Thirteenth Amendment forbidding slavery and involuntary servitude, and it cannot be open to doubt that the provision against involuntary servitude was never intended to apply to such contracts.  The contract of a sailor has always been treated as an exceptional one and involving to a certain extent the surrender of his personal liberty during the life of a contract.  

The affirmation continues: 

Indeed, seamen are treated by Congress, as well as the Parliament of Great Britain, as deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults, and as needing the protection of the law in the same sense in which minors and wards are entitle to the protection of their parents and guardians…The ancient characterization of seamen as “wards of admiralty” is even more accurate now than it was formerly. 

In other words, mariners surrendered their Thirteenth Amendment rights when they signed shipping articles and required special protection under the law.  This decision, along with others in the Progressive Era, led to wholesale changes in the maritime industry. Senator Robert LaFollette pushed through the Seamen’s Act in 1915, giving protections to mariners and, supposedly, reversing the 1897 Supreme Court decision regarding the status of merchant mariners.   It was followed by the Merchant Marine Act of 1920, specifically Section 31 that allowed crew to demand one-half of their pay owed to them when in port. It goes on to say, “Any failure on the part of the master to comply with this demand shall release the seaman from his contract.”  

A century later, the crews on board Bouchard Transportation Company tugs find themselves in a situation akin to John Bradley, Philip Helzen, Morris Hansen, and Robert Robertson at the end of the nineteenth century.  In the present day, the crewmembers are not being held by the masters, but instead by their own government, specifically the United States Coast Guard. Bouchard forfeited their rights to direct the crews on board the vessels when their contracts ended, and they failed to pay them.  The US Coast Guard should seize the vessels, make the necessary arrangements to secure them and their cargo, and release the crews.   

Unfortunately, this story is not uncommon to mariners around the world.  Many find themselves subjected to foreign laws, dealing with international companies, and very little protection.  The legislation that overturned the Arago Decision and aimed to prevent this from happening in the United States, does not appear to be helping the mariners on board Bouchard tugs.  For all practical purposes, they are indentured servants and their Thirteenth Amendment rights remain, once again, in question. It will take judicial action to alleviate this issue; maybe a future Bouchard Decision will finally put to bed the Arago Decision for American merchant mariners.  

Salvatore R. Mercogliano is an associate professor of History at Campbell University in Buies Creek, North Carolina and teaches courses in World Maritime History and Maritime Security.

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