Maritime Compliance Report

After many years of being involved with compliance issues for the maritime industry, I have developed a comprehensive model on how to manage compliance. If you would like to learn about this methodology which will help you develop confidence and peace of mind regarding compliance, you should make it a point to try to attend one of these conference sessions where I will be presenting the model:

Wednesday October 3, 2012 – Athens, Greece; Safety4Sea Forum; 2:00pm – 3:30pm “Culture of Compliance”

Friday December 7, 2012 – New Orleans, LA; International Workboat Show; 1:00pm – 2:00pm; “Culture of Compliance”

Additionally, if you are in the towboat business, there will be an important panel discussion at the Workboat Show, on whether to choose the Coast Guard option or third party TSMS option for inspection compliance under Subchapter M:

Wednesday December, 5, 2012 – International Workboat Show; New Orleans, LA; 4:00pm -5:30pm; “Choosing a Compliance Option for Towing Vessel Regulations: What You Need to Know”

I will be on this panel which will be moderated by retired RADM Joel Whitehead.

Also, when at the Workboat Show, please stop by our booth 2757 and say hello.

I look forward to seeing you.

When I was training to become a Coast Guard marine inspector years ago, I noticed the doorway on a crewboat was 28 inches wide. When I looked up the regulation, I found that the door for a passenger compartment is required to be 32 inches wide. The other inspector breaking me in was reluctant to make the owner enlarge the doorway.  All I could imagine was some very large passengers getting stuck in the capsized boat that we had certified.

 

Did you know that vessel owners are required to manage rain run-off? That crewmembers are required to screen their shore-side bosses if they come aboard a vessel? That push-boats are required to have a bell of a certain size in case they anchor or run aground in the fog? This is only the tip of the regulatory iceberg. Some regulations seem so ridiculous that vessel owners have a hard time believing that they could be true, or that they will ever be enforced, or that someone won’t come to their senses and make them go away. A common strategy used once a vessel owner becomes aware of a regulation is to call around to some friendly competitors to see what they are doing. They may end up convincing each other to adopt a “wait and see” approach. After all, the Coast Guard always gives 30 days to correct a deficiency, right? Some companies call the Coast Guard to ask about a particular issue, and because the Coast Guard person who answers the phone isn’t familiar with the particular requirement, the company may say, “The Coast Guard doesn’t even know about this,” and use that as an excuse to do little or nothing to comply. This is not good.

 

I got a ticket within the past year for “running a red light.” I never saw the light turn red as I drove through the yellow light traveling under the speed limit. However, the officer issuing me the ticket explained that if any portion of my vehicle remained in the intersection when the light turned red, then that constituted running a red light. I paid the ticket and then did a little research. I now know the legal definition of running a red light in my town. But, why didn’t I research that before? Because, I have a general knowledge of traffic rules, I don’t have a history of violations, and if I ever get a ticket, I’ll just pay it and move on. It’s all a matter of risk assessment. What is the risk to my peace of mind and my wallet? The answer is: minimal. There is no reason to proactively manage my compliance with traffic laws. However, when it comes to running my business, the risk is much greater and therefore, I make sure that I am compliant with whatever applicable laws and regulations I become aware of.

 

A properly implemented safety management system (SMS) can be a tool for operational excellence, and companies should not be steered away from adopting one. More than one person have expressed some confusion about why I would write a four part blog that appears to discourage the adoption of a Towing Safety Management System (TSMS), since producing safety management systems is a large part of our consulting business. The answer is simple; we’re in the business of helping clients by giving them all the facts, both good and bad, and helping them arrive at the decisions which will be best for their business, not ours. We are just explaining the implications and potential consequences of adopting an SMS and not fully implementing it. In future blogs I will outline the steps required to develop and implement an excellent safety management system. 

Subchapter M makes a distinction between surveys and audits. A very simple explanation I like to use is: a survey is an inspection of the vessel, while an audit is an inspection of the people. Under the TSMS option, third party auditors will verify compliance with the TSMS on behalf of the government. Third party auditors will be managed by a third party organization. It remains to be seen how this process will work.  Will vessel operators be able to use the auditor of their choice, or will an auditor be assigned by the third party organization, with no input from the company? Will third party auditors be paid directly by the towing company, creating a potential conflict of interest, or will auditor fees be passed through the third party organization?  These are critical issues which may be resolved in the final rule or through guidance documents.

 

If you have read the first two parts of this series you understand that during litigation, when there is a violation of a Subchapter M regulation or TSMS policy or procedure, that the burden of proof may be shifted against you, or that it may be more difficult to use the defense of contributory negligence, but you may be thinking at least you can still limit your liability… maybe not.

 

In Part 1 of the series we discussed the implications of choosing the Subchapter M Towing Safety Management System (TSMS) third-party compliance option in regards to inspection procedures, as well as the legal implications in regards to the “Pennsylvania Rule” under maritime law. Another legal issue raised in the previously referenced paper by attorneys Marc Hebert and Barret Rice,  “Subchapter M from a Defense Lawyer’s Perspective,” is the legal principle of “negligence per se.”

 

Perhaps the most controversial section of the Subchapter M Notice of Proposed Rule Making (NPRM) is 46 CFR part 136.130, “Options for obtaining certification of a towing vessel.” This part allows for an owner/operator to choose between traditional Coast Guard inspections for compliance, or to implement a Towing Safety Management System (TSMS) with third party surveyors and auditors verifying compliance on behalf of the Coast Guard. The latter may seem like an attractive option, that is, until you study the implications.

 

Most commercial vessels, including uninspected vessels, are required to conduct fire drills. A fire drill is more than testing the general alarm and the fire pump. The purpose of a drill is to understand the best possible procedure and to have a predictable response in a real emergency.