United States: The Lookout – Monitoring Admiralty, Maritime And Energy Practice (Summer 2017)

The Lookout provides readers with a snapshot of some important changes on the horizon that the Admiralty, Maritime & Energy Practice at Lewis Brisbois is monitoring.

Publication of Subchapter M Inspection Rules for Towing Vessels

Last summer, the regulatory standards and inspections for towing vessels known as Subchapter M went into effect. However, existing towing vessels under Subchapter M have until either July 20, 2018, or until the date the vessel obtains a Certificate of Inspection, whichever date is earlier, to meet the requirements of the federal regulations. These rules come after years of work from the U.S. Coast Guard along with American Waterways Operators. The effort was sparked by several disasters between the late 1990s through the early 2000s.

Officially codified as 46 CFR, Chapter I, Subchapter M parts 136-144, these regulations cover nearly all U.S.-flagged towing vessels 26' or larger and all U.S.-flagged towing vessels less than 26' that push barges carrying hazardous materials in bulk. Subchapter M will require these vessels to comply with a variety of regulations, such as:

  1. The master is responsible for the safety of the towing vessel. This includes: "(1) Adherence to the provisions of the Certificate of Inspection; (2) Compliance with the applicable provisions of this subchapter; (3) Compliance with the [Towing Safety Management System or] TSMS, if one is applicable to the vessel; and (4) Supervision of all persons on board in carrying out their assigned duties."
  2. Prior to getting underway for the first time on a particular towing vessel, each crew member must receive a safety orientation on: "(1) His or her duties in an emergency; (2) The location, operation, and use of lifesaving equipment; (3) Prevention of falls overboard; (4) Personal safety measures; (5) The location, operation, and use of Personal Protective Equipment; (6) Emergency egress procedures; (7) The use and operation of watertight and weathertight closures; (8) Responsibilities to provide assistance to individuals that are not crew members; (9) How to respond to emergencies relative to the tow; and (10) Awareness of, and expected response to, any other hazards inherent to the operation of the towing vessel which may pose a threat to life, property, or the environment."
  3. By July 22, 2019, owners or managing operators must implement a health and safety plan. The health and safety plan must document compliance with Part 140 of Subchapter M and the plan must include recordkeeping procedures. "The owner, managing operator, or master must ensure that all persons on board a towing vessel comply with the health and safety plan."
  4. Part 139 of Subchapter M sets forth the requirements for third-party organizations (TPO) that conduct audits and surveys for towing vessels. The Coast Guard approves TPOs "to carry out functions related to ensuring that towing vessels comply" with Subchapter M.

The Coast Guard has been fielding questions regarding Subchapter M and will continue working on implementation of the new rules throughout this transition, so we will be following the developments coming out of Subchapter M's impact on the towing industry.

McCain Introduces Bill to Repeal Jones Act

On July 13, 2017, U.S. Senator John McCain, who has long sought to repeal the Jones Act, introduced the Open America's Waters Act of 2017. This legislation would repeal the Merchant Marine Act of 1920 known as the Jones Act. The Jones Act imposes a requirement that any goods shipped between U.S. ports must be carried by U.S. built vessels built in the U.S. and owned and operated by U.S. citizens. Senator McCain, says that the Jones Act is "an archaic and burdensome law that hinders free trade."

U.S. Coast Guard Releases a Draft NVIC Addressing Cyber Risks at MTSA Regulated Facilities

The Coast Guard recently released a draft Navigation and Vessel Inspection Circular (NVIC) No. 05-17 providing guidance for addressing cyber risks at Maritime Transportation Security Act (MTSA) - regulated facilities. The NVIC instructs MTSA-regulated facilities to analyze vulnerabilities with computer systems and networks in their Facility Security Assessment, and the NVIC is intended to assist Facility Security Officers in completing that requirement. The NVIC would also provide guidance and recommended practices for MTSA-regulated facilities to address cyber risks.

Ninth Circuit Considering the Availability of Punitive Damages in Unseaworthiness Cases

The Ninth Circuit heard oral argument on February 8, 2017 in Christopher Batterton v. Dutra Group. The Court must decide whether punitive damages are available in unseaworthiness cases. Should the Court decide that punitive damages are available in such cases, it will create a split with the 5th Circuit, which decided in McBride v. Estis Well Services that only pecuniary – not punitive - damages are available against a Jones Act employer for negligence or unseaworthiness. Should the Ninth Circuit rule in favor of the plaintiff, chances increase that the U.S. Supreme Court would grant a petition for certiorari to resolve the conflict between the two Circuits.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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