Marine Safety Alerts

On October 9, 2014 the U.S. Coast Guard issued two Marine Safety Alerts that are of particular interest to barge fleeting, terminals and repair facilities situated on the navigable waters of our state. These Alerts do not break new ground, but are worthy of review.

Safety Alert 11-14 addresses barge fleet lighting. The Coast Guard reminds industry that in the last 12 years there have been at least 44 collisions by recreational vessels with moored barges that have resulted in 26 fatalities and 44 injuries in the Eight District, which includes the Mississippi River and its tributaries. Lighting of the moored barges was a factor in most of these casualties. The intent of the Alert is to not only to remind fleet and terminal operators of the importance and necessity of proper, sufficient lighting, but to remind boaters of the dangers present when operating near and around barge fleets.

Rule 30 of the Inland Rules of the Road, “Anchored Vessels and Vessels Aground”, was amended in July of this year to incorporate barge lighting requirements that were previously found in other regulations. Part (h) requires that barges projecting into a buoyed or restricted channel, any barge moored so that it reduces a navigable channel to less than 80 meters (263 ft.), barges moored in groups of two or more wide, and every barge not moored parallel to a dock or the bank must carry two unobstructed all around white lights of an intensity to be visible for at least one nautical mile. Part (j) requires that such lights be placed on the outboard corners or extremities of single and groups of barges so as to mark their perimeters.

That these requirements are clearly spelled out in the Rule has significance from a legal liability perspective. In the general maritime law, the alleged violator of a statutory rule intended to prevent marine casualties is presumed at fault and the burden is on the alleged violator to prove not only that its violation was not a contributing cause of the casualty, but that it could not have been a cause. This is a heavy burden to carry. Diligent adherence to these regulations is a must.

Safety Alert 10-14 speaks to preventing barge explosions. This alert was issued in response to recent casualties from explosions aboard barges in tank cleaning, stripping and gas-freeing operations. The Coast Guard’s review of such events has shown that their cause is typically not limited to one party, but by the combined lapses on the part of vessel personnel, facility personnel and shoreside managers.

Those in the industry are well aware that the Coast Guard requires each such facility to have in place Operations Manuals. 33 CFR §154.300, 310, et. seq., sets forth in detail the necessary contents of the Manual. The list is lengthy, but essentially must set out the business of the facility, types of vessels and cargo being worked and handled, operating procedures and emergency response protocols. Each facility must have a Manual approved by the Captain of the Port. Having found that the most common causal factor associated with tank barge explosions is the failure to follow key Operating Manual procedures, the Coast Guard expects strict compliance.

The Alert reminds operators to ensure that personnel are thoroughly trained and credentialed, proper ventilation be in effect, that the barge/vessel is properly grounded and that spark-producing equipment be removed, prohibit vessels operating nearby so as to avoid the introduction of a source of vapor ignition, and the barge/vessel be certified safe by a Certified Marine Chemist before any hot work is conducted or closed spaces entered.

Much of what is contained in these Alerts may be self-evident to those who are engaged daily in these practices. However, being familiar with a practice is no guarantee that the persons engaged will not start taking for granted that procedures are being followed. An isolated lapse can lead to serious injury and property damage. Thus, reminders such as these Alerts help to insure that all personnel remain vigilant.

These Marine Safety Alerts may be found by visiting the U.S. Coast Guard 8th District website, www.uscg.mil/d8/.

Recent Development of Interest: Watervale Marine v. U.S. Dept. of Homeland Security

In July the U.S. District Court for the District of Columbia, in a case of first impression, considered whether the U.S. Coast Guard had authority to impose non-financial conditions for the release of a foreign flag vessel that it had detained at a United States port due to suspected violations of federal and international environmental law.  (Watervale Marine Co., LTD v. U.S. Department of Homeland Security, et al.)

The plaintiff is owner of four foreign flagged merchant vessels that the Coast Guard detained for investigation of criminal violations and later released, but only after plaintiff had posted a bond and executed a “security agreement” that contained various non-financial obligations.  Plaintiff challenged the non-financial security agreements that it had been required to execute in order to gain release of the vessels on the grounds that the Coast Guard lacked statutory authority to require any such condition prior to releasing the vessels.

The underlying facts were not in dispute.  Whistleblowers on board each ship had reported to the Coast Guard alleged violations of the Act to Prevent Pollution from Ships (“APPS”, 33 U.S.C. 1901-1915), which was passed with the intent to “achieve complete elimination of intentional pollution of the marine environment by oil and other harmful substances…”.  APPS was enacted by Congress because the United States had entered into a treaty with other foreign nations called the International Convention for the Prevention of Pollution from ships, commonly known as MARPOL.  As a signatory to the MARPOL, the U.S. was required to enact laws to administer and enforce MARPOL.  Thus APPS was conceived.

Under APPS the Coast Guard is authorized to board and inspect ships that call on U.S. ports in order to detect violations of APPS and other environmental laws.  Before departing a U.S. port a foreign flag ship must obtain departure clearance from Customs and under APPS the government can withhold clearance for established or suspected APPS violations.  APPS also provides that a ship that has been so detained and which may be liable for a fine or civil penalty may be granted clearance upon filing of a bond or other satisfactory surety.

The “non-financial” obligations imposed on Watervale to gain release of its vessels were exacting.  It required the crew to remain in the jurisdiction until the investigation was complete, that Watervale had to pay the crew their wages and provide housing and a per diem, keep the crew on as employees, encourage the crew to cooperate with the Coast Guard, arrange for repatriation of the crew, stipulate to authenticity of documents and items seized, help the government serve subpoenas on crew located abroad, waive objections to the jurisdiction and enter an appearance in federal court.  Faced with the prospect of serious financial loss if its vessels were not released Watervale signed the agreement.  This was in addition to a surety bond paid out to the United States if the government prevailed in subsequent prosecution and a judgment entered against Watervale.

In a lengthy decision the Court concluded that APPS, as written, did not put constraints on the power of the Coast Guard to determine the conditions to which a vessel owner must agree to gain release of its vessel.  It found that with passage of APPS, Congress places the question of whether, and under what circumstances, departure clearance is to be granted entirely within the Coast Guard’s discretion.  Put another way, even if Watervale was correct that a bond or other “financial” surety is a necessary prerequisite for release by the Coast Guard, the statute makes clear that the Coast Guard “may” release the vessel upon posting of such a bond, and does not provide any statutory standards by which to assess the circumstances under which the Coast Guard may or may not grant clearance.  Thus, the Coast Guard was free to impose any other conditions is thought appropriate in the exercise of its discretion.

Of perhaps more relevance to the day to day operation of our Port, after a long delay the Transportation Security Administration began nationwide implementation of the TWIC OneVisit program.  This program, the result of years of urging by industry and certain members of Congress, reforms the process of procuring a TWIC card so that the applicant does not have to make two in-person visits to an enrollment center to retrieve his card.  Now, the applicant can apply for his card at an enrollment center and then have his card mailed to him.  For many mariners this is significant given the time and expense they have had to incur making this extra trip.  As stated by Rep. Don Young, (R-Alaska), this reform was necessary so that “thousands of transportation workers across the nation can spend less time traveling to TWIC offices and more time working to put food on their families’ tables”.  Visit www.tsa.gov for more information

False Distress Call Results in Serious Criminal Penalties

In March 2012, an aircraft pilot falsely reported observing a fishing boat with four passengers in distress in Lake Erie.  In response to the distress call, the U. S. Coast Guard and the Canadian Armed Forces launched a massive search and rescue mission that lasted over 21 hours.  Substantial costs were incurred by both agencies totaling over a half a million dollars.  During a subsequent investigation, the pilot admitted to the Coast Guard that his report of a boat in distress was fabricated.

The pilot was indicted and later pled guilty to making a false distress call, a felony under 14 USC §88.  In addition to a three month prison term and three years supervised release, the pilot was ordered to pay restitution to the U. S. Coast Guard and the Canadian Armed Forces to the full extent of the expenses they incurred in the search and rescue mission.

Following the formal sentencing, the pilot appealed the assessment of “indirect costs,” such as general overhead that would have been incurred by the Coast Guard irrespective of its response to the false distress report.  He argued that such ordinary expenses were not “losses” contemplated by 14 USC §88(c).  He did not contest his liability for the cost directly attributed to his criminal actions, which included the actual expenses attributable solely to search and rescue efforts.

With little guidance from prior case law on this issue, the U. S. Court of Appeals for the 6th Circuit (based in Cincinnati, Ohio) in United States v. Kumar gave a strict interpretation of the statute and found that it was not limited only to “losses” sustained by the Coast Guard, but rather provided for the recovery of all costs incurred because of the criminal defendant’s actions.  For this reason, the Court of Appeals found that the judgment against the pilot which included the full extent of the costs spent by the Coast Guard, including its indirect overhead expenses, was appropriate.  The appellate court further upheld the judgment requiring the defendant to similarly repay the Canadian Armed Forces.  This aspect of the criminal penalty was not specifically provided for by statute, but was permissible within the trial court’s discretionary sentencing authority.

Note: This article first appeared in WorkBoat magazine, and on WorkBoat’s website.

The Fourth Amendment Rights vs. Boarding Power of the United States Coast Guard

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Amendment IV, U.S. Constitution, ratified 12/15/1791.

The Fourth Amendment to the U.S. Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  It was written in direct response to British general warrants which empowered British law enforcement to search virtually any home, at any time, for any reason, or for no reason at all.

The Coast Guard’s primary law enforcement authority is derived from 14 USC 89 (made law in1949) which states in part, “The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of the laws of the United States for such purposes, commissioned, warrant and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operations of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance . . .”

While the Fourth Amendment may protect the citizen, law abiding or not, from the threat of an “unwarranted” search, that protection ceases once the citizen is on a vessel.  The Coast Guard has sweeping authority to board any vessel (subject to the jurisdiction of the United States) at any time, any place.  It does not require a warrant.  It does not require probable cause.  Boardings need not be based on a suspicion that a violation already exists aboard the vessel.  Their purpose is to prevent violations and the courts have upheld this authority.  Also, the Coast Guard has full legal law enforcement power on any land under the control of the United States, as needed to complete any mission.  14 USC  89 has its roots in the Revenue Service Act of 1790 which provided “all collectors, naval officers, surveyors, inspectors and the officers of the revenue cutters . . . to go on board ships in any part of the United States . . . for the purposes of demanding manifests . . . examining and searching the said ships, and the officers shall have free access to the cabin and every other part of the vessel . . .”  This statute was passed by the first Congress, the same Congress that enacted the Bill of Rights, including the Fourth Amendment with its guarantees for citizens to be secure against unreasonable searches and seizures.  By enacting the Revenue Service Act, the first Congress showed unequivocally that the Coast Guard’s significant law enforcement authorities to board and search a U.S. flag vessel anywhere in the world, as well as vessels intending to call on U.S. ports, were consistent with the Fourth Amendment.

U.S. Courts over the last 200 years have consistently validated the right of the Coast Guard to board and inspect vessels, probable cause or not.

Plainly stated, when it comes to Coast Guard boarding, you don’t have any rights.  As stated by Capt. Rasicott and CDR Cunningham in their article found in Proceedings, Summer 2009;  “There are two main ways to board a vessel – either with permission, or without.”

Vessel operators should know that to refuse permission for Coast Guard personnel to board may subject them to a penalty of $500.   Forcibly resisting is a felony punishable by up to ten years in prison and a $10,000.00 fine.

The unfettered search authority by the Coast Guard has its merits, especially in a world where random acts of terrorism are a constant threat and smuggling of illegal drugs into the U.S. is rampant.  Supporters also point out that “the government certainly has a vital interest in ensuring vessels on the high seas are safe, seaworthy, and properly documented.”  See Constitutional Barriers to Smooth Sailing;  14 U.S.C. 89(a) and the Fourth Amendment by Megan J. Knight.  Indiana Law Journal Vol. 72, Issue 2.  In her article, Ms. Knight recognizes the inherent conflict between the U.S. citizen’s expected right to privacy and 14 U.S.C. 89, and suggests that these vital interests, however “should not be advanced at the cost of sacrificing the constitutional freedoms of law abiding seafarers.”

However, if you are expecting the Courts to reverse decades of decisions finding that 14 U.S.C. 89 searches are not in conflict with the Fourth Amendment, forget about it.  In today’s society where everyone is subject to mandatory searches without probable cause every time you board an airliner, enter a government building, state or federal, or major sporting event, the power of the Coast Guard to search any vessel at any time is not going to be fettered.  It will take an act of Congress and that will never happen.

For excellent in depth analysis of the Fourth Amendment and 14 U.S.C. 89 see also The United States Coast Guard’s Law Enforcement Authority’s under 14 U.S.C 89; Smuggler’s Blues or Boaters’ Nightmare by Greg Shelton, William and Mary Law Review, Vol. 34, Issue 3; and Coast Guard Boardings and Your Fourth Amendment Rights, Part 1 – 3, by Clark Beek 10-12, www.sailfeed.com.