If a company hired a new captain for a new vessel, and shortly thereafter that captain was asked what challenges he faces on his new vessel, what do you think he might say? I can't imagine him saying that the biggest hurdle he faced was that there was not enough established doctrine or written procedures for him to follow! Perhaps if International Safety Management (ISM) systems had been implemented as intended, to minimize human error by following written procedures that represent best practices, he might have said such a thing. But that culture, to my knowledge, has not been established on the civilian side of seafaring. While working with companies to implement ISM and other safety management programs, I often use the example of serving on a number of Coast Guard cutters, where there was a right way to do everything, and it was written down in manuals. There were almost no checklists used either, because everything had to be learned, practiced, memorized and drilled. From this perspective, I believe a real safety culture is one where the word "safety" is never mentioned. I can't remember ever hearing it on any Coast Guard cutter: there was only the right way to do things. In watching Dale DuPont's interview with LCDR Craig Allen, Commanding Officer of the USCGC William Flores, on Workboat.com recently, I was pleased to see that some things never change. Listen to what the Captain says when asked what challenges he faces on his new vessel… (Video interview) That's right; he says that their biggest hurdle is that there is not enough established doctrine or procedures to follow. He explains they will have to make them from scratch based upon lessons learned and best practices. This is an example of what the Coast Guard's "safety culture" looks like. The operational Coast Guard is not an excellent organization by accident. How excellent is your operation?
Maritime Compliance Report
Time flies. It's hard to believe that many TWICs are reaching their expiration date. Thankfully, there is an alternative process to renew a TWIC for those whose cards are now expiring. As long as you are a U.S. citizen or U.S. national and your TWIC is expiring before December 31, 2014, all you have to do is call 1-866-347-8942 and pay $60, to order a new TWIC which will be good for another three years. A client recently did this over the phone with all their employees and found it to be a very simple process. Of course, once the TWIC is ready, it will require a trip to a TWIC center to pick it up and activate it.
Another expiration which is coming up is the first batch of Bridging Program Uninspected Towing Vessel (UTV) examination stickers. Some vessel operators are under the impression that they must renew their examination sticker. This is not the case. UTVs are still uninspected until the Final Rule of Subchapter M goes into effect. The UTV examination program had been around for many years before the Bridging Program, a program which is similar to the commercial fishing vessel voluntary examination program. The Coast Guard decided to use the UTV examination program as part of the Bridging Program to ease the transition to inspected towing vessel status. Once a towing vessel has been examined and has received a sticker, it has fulfilled its obligation under the Bridging Program and there is no further requirement to have the sticker renewed.
Additionally, a client of mine recently returned for the UTV examiner course at the Coast Guard Training Center in Yorktown, VA. The week-long course is mainly for Coast Guard personnel, but a number of seats are dedicated for industry personnel. The course was reportedly, very informative and the binder of training material I reviewed contained a great deal of useful information. My client said one of the most important things that he got out of the course was to witness the Coast Guard's approach compliance which was a real eye opener. If you can get into one of these courses it will definitely be worth the trip.
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.
Some say that regulations are written in blood. To have an effective compliance program, there must be an understanding of the intent of the regulations. Research is often necessary, but some owner/operators don't have the time, manpower, or desire to figure out if a certain regulation applies, or what the intent of the regulation is. As a result, many companies end up "chasing their tails" by relying solely on others' opinions and interpretations.
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.
Acceptance is the second component to maritime compliance management. This is where the company management "buy-in" discussion has its roots. If the company ignores a regulation, or does something half-way to at least look like it was trying and hope for the best, it will not be perceived as having bought in to the program by its employees. Captains of vessels are charged with ensuring compliance with the majority of vessel regulations. From a leadership standpoint, if the captain knows, or perceives, that the company is not taking a regulation or program seriously, why would they? A basic principle of leadership is, "In order to be a good leader, you must first be a good follower." That doesn't mean just doing what your boss says. It applies to following all rules and regulations. If your company is having trouble getting captains to be proactive about compliance issues, examine your own company's attitude toward the regulations. Why would crews put forth an effort if they know the company thinks it's all "crap?" Unless a company accepts a regulation, for better or for worse, it will be plagued with problems over the long term.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.
Awareness is the first component to maritime compliance management. You can't comply with regulations if you're not aware of them. Some ostriches reading this are thinking, "Exactly!" But we all know how the government feels about "ignorance of the law…" When your business is at risk, you can't afford not to be aware of regulations. There are many sources of information these days. There is really no good excuse for not being aware of all the regulations coming at a fast rate. It should be someone's job in the organization to subscribe to newsletters and check the appropriate websites to stay on top of all the latest developments. For example, the North American ECA goes into effect on Wednesday, August 1, 2012. Accordingly, the Coast Guard has published a10-page policy letter and a 16-page job aid for Coast Guard inspectors to make sure vessel companies are compliant. Vessel companies should make it a point to study those two documents. Don't manage your vessel compliance the way I manage my traffic compliance; the risks are not the same.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. One point about the TSMS option in the Subchapter M proposed rule requires clarification. One of my clients was under the impression that since the company had already adopted a safety management system that it would have to use the TSMS option in Subchapter M. That is not the case. A company may have been operating under an SMS for many years, but that company can still choose straight Coast Guard inspections to obtain its Certificate of Inspection (COI). According to the proposed rule, the company will fill out an application for inspection and designate the compliance option for each vessel. The company may choose the TSMS option for some vessels and straight Coast Guard inspections for its other vessels. When Coast Guard inspectors show up to do the inspection, if they see an SMS on the bookshelf, they will not say, "Oh, you're on an SMS, we're outta here. Call a third party auditor." That option belongs to the company. We'll have to wait and see if that option survives in the final rule.
The Coast Guard will provide the check and balance for this program to ensure that the audits have been conducted thoroughly and accurately. There may be consequences for an auditor who is found to have conducted a less than adequate audit resulting in a Towing Safety Management Certificate being issued to a non-compliant vessel. For example, consider the recent case of Mr. Alejandro Gonzalez. According to a Department of Justice press release, Mr. Gonzalez, a Miami-based surveyor working on behalf of the flag of Bolivia, certified the M/V Cosette safe for sea. Shortly thereafter, when the vessel arrived in New York, Coast Guard inspectors found "fuel and exhaust pouring into the engine room." Since Mr. Gonzalez had certified the vessel safe for sea and the Coast Guard determined it was not, he was convicted by a federal jury on May 24 for "making a false statement." Mr. Gonzalez had other charges, but for this conviction he faces a maximum of five years in prison. He will be sentenced on August 2. Subchapter M auditors and surveyors could face the same fate as Mr. Gonzalez if the Coast Guard determines that "false statements" have been made. While this is a remote possibility, the take-away should be that, presumably auditors will be aware of their own exposure and therefore owners and operators should prepare for more stringent audits under Subchapter M.
Besides the auditor's exposure, attorneys Marc Hebert and Barrett Rice, in their paper, "Subchapter M from a Defense Lawyer's Perspective," weighed in on the importance of choosing an auditor with regards to owners' legal liabilities. "… For those vessel owners opting for the TSMS option, consider all theses legal implications when choosing your auditor or surveyor. What if the third party auditor fails to identify a portion of the TSMS plan which is not effectively being implemented? What if the surveyor misses an unsafe condition on the vessel, the knowledge of which will ultimately be attributed to you? While many vessel owners will seek out the auditor or surveyor who helped them obtain their certificate of insurance or certificate of compliance as quickly as possible, we urge you to find that third party auditor and/or surveyor who will scrutinize any aspect of your business and present you with the brutal truth." I couldn't agree more.
The concept of limitation of liability under maritime law stems from a law passed in 1851 known as the Limitation of Shipowners Liability Act which was designed to protect U.S. shipping by allowing owners to limit their liability to the value of the vessel in instances where the company had no control. Today, many limitation of liability proceedings come down to whether the company had "privity or knowledge" of the circumstances which led to the incident in question. This becomes problematic when a company is operating under a safety management system such as the Towing Safety Management System (TSMS) under Subchapter M, where it could be argued that the intent of the regulations is to ensure that the company has "privity or knowledge" of almost all situations on the vessel at all times. Marc Hebert, in his previously referenced paper "Subchapter M from a Defense Lawyer's Perspective," writes, "In our opinion Subchapter M, particularly through a TSMS option, essentially requires that vessel owners/operators make themselves aware, through the implementation of a safety management system, of the daily minutia on each and every vessel. It may be argued that, by statute, your knowledge is mandated."
We have recently seen an example play out in the courts in the unfortunate case of the duck boat being run over by the tug and barge near Philadelphia, which resulted in two deaths. The mate on watch at the time of the incident, who is currently serving a one-year sentence for involuntary manslaughter, according to the Philadelphia Inquirer, May 7, 2012, was on his cell phone handling a family emergency. The towing company attempted to limit its liability due to the fact that it had a cell phone policy, but argued that the mate had simply disobeyed the policy. However, according to the Workboat.com blog by Dale DuPont on May 14, 2012, the plaintiff attorney successfully argued that, "… the policy never worked, not once, not with a single person on this voyage, ever. Every single one of them used their cell phone on watch every single day. That is the definition of a failed policy." According to DuPont's blog post, two days later the sides in a trial that was expected to last for months, agreed to a $17 million dollar settlement for the victims and their families.
Choosing the TSMS option and establishing written policies and procedures, which must be followed, increases that probability that vessel operators will not be able to limit their liability as easily as those who do not choose the TSMS. Marc Hebert in his paper asks the question "… with Subchapter M, will the Limitation Act continue to be of use to the inland towing vessel owner?" Stay tuned for more…
The paper refers to the common defense strategy in Jones Act cases of contributory negligence on the part of the plaintiff. Hebert wrote, "In a standard answer to a Jones Act claim, every defendant pleads the affirmative defense of contributory negligence – that the accident or injury was caused, wholly or in part, by the actions or neglect of the Plaintiff." According to Hebert, with the legal principle of negligence per se, a violation of a safety law or regulation, such as those contained in Subchapter M, creates a presumption of negligence and liability which the vessel operator must overcome through evidence that the violation was not the proximate cause of the accident. This makes the defense of contributory negligence more difficult for the defense. Hebert explains in the paper, "Thus, if the personal injury attorney proves the violation of a regulation and some causal connection between the violation and injury, the vessel owner may well be absolutely liable."
Again, Subchapter M will increase the probability that a vessel will be found in non-compliance simply due to the vast number of regulations it contains. Choosing the TSMS option and establishing written policies and procedures, which must be followed, increases that probability even further. Stay tuned for more…
Hypothetically speaking, if two similar vessels were going through an inspection for certification at the same time, the one that chose the Coast Guard option would be done after the vessel itself was inspected and the captain was found to have a valid license to operate the vessel. However, for the vessel that chose the TSMS-third party option, after the vessel itself is surveyed for compliance, an auditor must come in and verify that the licensed captain is following all the company's policies and procedures. Essentially, by choosing the TSMS option, the company is betting a vessel's Certificate of Inspection on the captain's ability to follow written policies and procedures and not to rely solely on his experience to operate the vessel.
But compliance is not the only concern. Choosing the TSMS third party option will also have legal implications. Since the policies and procedures contained in a TSMS will have the force of a regulation, non-compliance may affect future litigation in a number of ways. Marc Hebert, an attorney at the Jones Walker law firm in New Orleans, along with Barrett Rice, prepared an excellent paper for the Greater New Orleans Barge Fleeting Association (GNOBFA) annual conference this year, entitled: "Subchapter M from a Defense Lawyer's Perspective." In the paper, Mr. Hebert outlines a number of legal concerns with Subchapter M and he has given me permission to discuss a few of them with you:
Pennsylvania Rule: Paraphrased from Mr. Hebert and Mr. Rice's paper: "…when a vessel violates a statute or regulation intended to protect a particular harm, that vessel is presumed to be at fault. The presumption results in a shift in the burden of proof. When an incident results, or even occurs within a short time after such a violation, the vessel owner may have to prove in court that each and every violation of a regulation could not have been a contributing factor in the incident in question." "How will the vessel owner prove, with a document, that his or her TSMS is being enforced?" "…Failure to demonstrate compliance will likely be a rule violation and under the Pennsylvania Rule, such a violation results in a presumption of liability under the law."
Subchapter M will increase the probability that a vessel will be found in non-compliance simply due to the vast number of regulations it contains. Choosing the TSMS option and establishing written policies and procedures, which must be followed, increases that probability even further. Stay tuned for more…
On May 3rd Coast Guard Headquarters released an update on the Coast Guard Towing Vessel Bridging Program. Phase 1 of the Bridging Program began in June of 2009. The purpose of the program was to prepare the towing industry for the impending inspection regulations contained in Subchapter M, and at the same time familiarize Coast Guard personnel with towing vessels and their operations. The Coast Guard estimates there is a total of approximately 5,800 towing vessels. Since the beginning of Phase 1 of the Bridging Program the Coast Guard has conducted 4,200 industry initiated examinations and issued 3,200 decals to towing vessels.
It is important to note that these are examinations being conducted, not inspections. The towing vessels being examined are currently "uninspected vessels." The examination is to verify compliance with existing regulations which apply to uninspected towing vessels. Once Subchapter M is finalized there will be many more regulatory requirements for these towing vessels and they will be inspected for certification and receive a certificate of inspection, not an examination sticker.
According to the Coast Guard, phase 2 will commence on July 1, 2012. During phase 1 the Coast Guard relied upon industry to volunteer to have their vessels examined. Phase 2, while still allowing industry initiated exams, will also begin prioritized exams and underway law enforcement boardings and surge operations. High priority vessels under phase 2 are those vessels owned or operated by companies that have not participated in phase 1. Low priority vessels are those vessels owned or operated by companies actively participating in the Bridging Program, but not all of the company's vessels have been examined. Non-priority vessels are vessels owned or operated by a company which has participated in the bridging program and has already been examined.
Prioritized exams will be the same scope as industry initiated exams but will be at the convenience of the Coast Guard, not the company. Deficiency reports will be issued during prioritized exams and the deficiencies will have to be resolved within the allotted time frame in order to avoid civil penalty. Notice of Violations may be issued for noncompliance during law enforcement boardings. Coast Guard's phase 2 memorandum explains that while deficiencies found during industry initiated exams were not available to the public, deficiencies found during phase 2 prioritized exams will be entered into the PSIX website and will be available to viewing by the public.
Even though Subchapter M seems far of at times the Coast Guard is moving forward with their program to prepare the industry for what the future has in store. The phase 2 memo explains the "risk" associated with not achieving the goal of the Bridging Program is that, "…companies and their vessels may not be prepared for an environment where they must have a Certificate of Inspection (COI) to operate their vessel(s)." Phase 2 will certainly bring the industry closer to that reality.
There is an age-old quandary in the maritime industry when it comes to dealing with the U.S. Coast Guard: to just do whatever they say, or challenge their decision? Many choose to go along with whatever a Coast Guard inspector says, even when a decision may have been made in error, or the impact to the company may be great. This is mostly due to a misconception that the Coast Guard is likely to retaliate if challenged. Another common reason for going along with whatever the Coast Guard inspector says is simply to "keep them happy and make them go away." Sometimes this can backfire and have serious consequences for a vessel owner when they realize the impact of what they have agreed to, and if they don't follow through in the future.
Many years ago, as a trainee Coast Guard marine inspector, I was sent out to do my first solo barge inspection. While inspecting the bunker barge I looked at the warning sign and told the company representative that I thought the sign was also supposed to read "dangerous cargo." He assured me the sign was fine, and I pushed back. I offered to look it up, but he did not want to debate the issue and told me to go ahead and write the CG835 and that he would change the sign. I should have looked it up... A few days later while reviewing cases, my boss called me into his office and made me look up the regulation. He then directed me to go back and tell the barge representative that I was incorrect, and to put the original sign back. I felt terrible at having caused this barge operator money and aggravation, but I learned a valuable lesson that day. I'm thankful for having had a boss who understood his responsibilities and was willing to hold me accountable.
While most Coast Guard inspectors are knowledgeable and conscientious, none are perfect. It's not unreasonable to ask the inspector if he would provide the regulatory citation and explain the deficiency. If the issue can't be resolved at the lowest level, industry has the right to appeal. The intent of the policy is best explained by a well respected former Commandant, ADM Thad Allen, in his message to the troops (ALCOAST 108/08): "Disruption in the normal flow of commerce impacts many parties in the supply chain. We have clearly established appeal procedures when we make a decision that could have negative impacts on a licensed mariner or on the maritime industry. The exercise of appeal is a right we strongly support. Questions, differences of professional opinion, and appeals are normal and improve the conduct of business. We must be as accepting of these as praise. Attempt to resolve problems at the lowest level possible and be resourceful in doing so."
Appeals can be challenging, but they are a necessary part of the process. When necessary, give the Coast Guard a chance to exercise its own system of checks and balances.
Preamble – The Coast Guard explains that ballast water exchange method "is not well suited" as the basis for the program required by the National Invasive Species Act, in part because studies have shown that in some vessels a large number of invasive species may remain after ballast water exchange. Further justification is provided for the Coast Guard's requiring approved Ballast Water Management Systems (BWMS) to be installed on vessels.
Applicability – Generally, the regulations apply to all non-recreational vessels with ballast tanks, operating in U.S. waters. There are exemptions from certain sections for certain vessels. For example, a vessel operating in one Captain of the Port (COTP) Zone is exempt from ballast water management, reporting and record keeping requirements. Keep in mind, if a vessel makes such a claim for these exemptions, the Coast Guard may place a restrictive endorsement on the vessel's certificate of inspection (COI) restricting it to one COTP Zone. Some vessels are only exempt from the ballast water management requirements, but not the other requirements such as record keeping and reporting requirements.
Ballast Water Management – There are a number of options for managing ballast water included in this section ranging from installing a Ballast Water Management System (BWMS) which is Coast Guard approved piece of equipment, or using a public water system, to name a few. However, it makes the public water option more difficult than before by requiring prior tank cleaning as well as documentation and receipts as proof. There is a phase-in schedule for vessels required to install the new equipment based upon their next drydock after a given date.
Ballast Water Management Plans and Training – 33CFR 151.2050 applies to all vessels equipped with ballast tanks and requires a vessel specific ballast water management plan and training for crews.
Port State Control – Regarding foreign flag vessels, the preamble mentions that port state control officers will serve as the final enforcement check of BWMS.
EPA Vessel General Permit (VGP) – The preamble mentions that the new EPA VGP which is out for comment and that when it is finalized the ballast water requirements contained in the VGP may differ from the Coast Guard's regulation. Attention will have to be paid to both.
Penalties - Finally, the regulation states that any person who violates this subpart is liable for a civil penalty not to exceed $35,000, and each day constitutes a separate violation. Additionally, a person who knowingly violates the regulations of this subpart is guilty of a class C felony.
There is a great deal of information in this regulation and I encourage you take the time to read through it.
Last fall we contracted with American Tugs, Inc. in Puerto Rico, to develop and implement a safety management system. Not just any safety management system, but a Towing Safety Management System (TSMS) which would meet the requirements laid out in the Notice of Proposed Rule Making (NPRM) for 46 CFR Subchapter M. Here's how we did it:
Developing the TSMS – We followed the format laid out in 46 CFR part 138.220, and determined that the TSMS would have five major sections. We left Section 4 - Compliance with Subchapter M "reserved for the Final Rule." The company provided their standard operating procedures and we included our recommended policies and procedures and standard industry practices in the appropriate sections. We drafted the TSMS in accordance with our company philosophy that the policies and procedures must be concise and written in a way that can be read, understood, and followed by all.
Company review – The draft TSMS was then passed along to American Tugs, with the instructions to have all responsible parties, including company personnel and vessel captains, to read through the draft, provided input and edits. The company did an outstanding job of reading the entire draft and questioning many of the policies and procedures. They requested a number of changes, all which had to be checked against the regulations to ensure full compliance. It was critical to achieve buy-in from the captains by ensuring their expertise on the policies and procedures was included.
Coaching program – At the same time American Tugs contracted with us for a comprehensive coaching program for the two company personnel responsible for compliance, health, safety, security and environment issues. The coaching program was essential for them to understand where all the regulations come from, USCG, EPA, OSHA, etc.., and why such policies and procedures were required. The three month coaching also included the essential leadership and management skills to ensure the program is successfully implemented over the long term.
Implementation – The Company is now entering into the implementation phase. We will continue to assist them throughout the year with on board inspection; training and drills to ensure the captains and crews understand the importance of the program and how to properly execute it.
It has been a very rewarding experience working with American Tugs, Inc., a company fully dedicated to a program which will surely reap substantial benefits from their hard work in the years to come.
Previously published in my worlboat.com blog: Regulatory Roundup
However, one of the main purposes of a TWIC is to run the applicant through the terrorist watch list to see if they have any links to terrorist organizations or terrorist activities. Some feel that this is unnecessary and that it criminalizes mariners. The truth is that in the past terrorists have blown up passenger ferries in the Philippines, resulting in many lives lost. So what's that got to do with the U.S.? It is a viable threat scenario here as well. Also, according to the FBI's joint "Operation Drydock," with the Coast Guard in 2004 nine credentialed mariners were found to have "possible associations to terrorism." How bad would it be if a vessel was used in a terrorist attack, and it was later found that the captain was a terrorist and that it could have been prevented if anyone had bothered to check? I don't think TWICs are useless.
So why is it OK now if some credentialed mariners don't have TWICs? The Maritime Transportation Security Act of 2002 is counter-terrorism legislation which requires the prevention or deterrence of a transportation security incident (TSI). A "TSI" is defined as a security incident resulting in significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area. The Coast Guard, in establishing the applicability of the security regulations, determined some vessels to be at a low risk of being involved in a TSI, and excluded them from the applicability. It is those vessels, which are at low risk of a TSI and have no security plan, which will be allowed to have captains without TWICs. Whether you agree with this or not, one good thing which I hope may come from it is it may help us refocus on the intent of the security regulations, which is to prevent or deter a transportation security incident (TSI), and to avoid the complacency of, to borrow a phrase, "security theater."
The Coast Guard has offered the industry a compliance option in the proposed towing vessel regulation: traditional Coast Guard inspections, or the Towing Vessel Safety Management System (TSMS). The TSMS was introduced to address the human element in towing vessel incidents, justified in the proposed rule by statistics which showed that human factors accounted for 54 percent of the medium and high severity towing vessel incidents. While the members of the Towing Safety Advisory Committee (TSAC) recommended that the TSMS be the backbone of any inspection program, the Coast Guard has proposed to make the TSMS a choice and not mandatory.
The Coast Guard contracted with the American Bureau of Shipping Group (ABSG) in 2006 to study, among other things, the impact of an inspection program on the towing industry. The findings of that study were cited by the Coast Guard, along with input from the TSAC Economic Working Group, as their reasons for making the TSMS voluntary and not mandatory: "a safety management system may not [be] a very cost-effective way to achieve safer operations, "the industry personnel were clear that effective implementation of a safety management system was a very difficult task for a company that had not previously been highly structured and had not formally documented its policies and procedures.'' TSAC Economic Working Group report stated ''[A SMS] will likely have a larger and more devastating impact on smaller companies who do not have the economic means, manpower, or even time to implement a system.'' Therefore, the Coast Guard concluded: "…it is appropriate to propose that all towing vessels subject to this rulemaking have the option of operating within a company implemented TSMS." Federal Register/ Vol. 76, No.155/ Thursday August 11, 2011/ Proposed Rule, pg.49979
This seems like a fair and well-reasoned approach by the Coast Guard. Oddly enough however, there are some in the industry who are opposed to allowing this option and who want the TSMS to be mandatory for all. In fact, reports from the first public meeting on the topic were that there was virtually no support of the traditional Coast Guard inspection option! Perhaps, companies are not concerned about the economic impact projected, but they should heed the warning that, "effective implementation of an SMS was a very difficult task.." Indeed. It is a very difficult task for any company. Why would companies oppose such a choice? Perhaps they do not yet understand what the government means by "effective implementation." But surely they will find out.
If this choice is allowed to remain in the final rule, companies will be faced with a very important choice. I suggest that before companies choose the TSMS option they first ask their captains if they will be willing to operate their vessels in strict conformance with the company's written policies and procedures in the TSMS, and not simply rely upon their experience and license when operating the vessels. If the captains respond, "Of course we will, no problem," and the company is 100% confident in that response, then they should go ahead and bet their vessel's Certificate of Inspection (COI) on it by choosing the TSMS compliance option. Otherwise, a prudent risk-based approach would dictate going with the traditional Coast Guard inspection option.
There are many controversial issues regarding the proposed regulations. One of the most prominent seems to be that many do not agree that towing vessels needed to be "inspected" vessels. Some feel that the bridging program and towing vessel examinations have been very successful in raising the level of compliance and are sufficient to ensure safe operations. While others maintain that the towing industry is safe, they agree with making towing vessels "inspected" in order to remove the stigma of "uninspected" vessels, and improve or eliminate shoddy operators. This discussion may seem moot at this point, but the "why" is important.
The Coast Guard provides justification for their regulations in the NPRM through statistics and studies, to explain why towing vessels are now required to be inspected. Regardless of what side of the argument you were on as to why towing vessels needed to be inspected or not, what matters at the end of the day, is the justification the Coast Guard writes in the Federal Register. Because when disputes arise regarding the intent of the regulations, which they always do, prudent Coast Guard inspectors and their supervisors refer back the "discussion" part of the Federal Register to determine the intent of the regulations.
For example: during a Coast Guard oversight inspection, a towing vessel company is found to be in noncompliance because the captain does not follow the written policies and procedures in the TSMS. The company argues to the Coast Guard that the procedures are guidelines for the captain to refer to if need be and not hard and fast rules. Besides, the company further explains that the only reason the TSMS is in the regulations is because the industry asked for it. The prudent Coast Guard inspector would respond that, according to the Federal Register: "the majority of towing vessel accidents are related to human factors," and the TSMS was included as a means to address human factors, and that "the TSMS will provide instructions and procedures for the safe operation of the vessel." Therefore, if the captain does not follow the written procedures provided by the company, the human factors remain unaddressed, and therefore the company is not operating in accordance with the intent of the regulations…. And while we're at it, who did your last audit?
You can influence the future content of the Federal Register discussion by commenting to the docket and participating in the public meetings. Don't miss the opportunity.
*Originally published in the Workboat blog Regulatory Roundup.
Since the majority of accidents are related to human factors, the Coast Guard is proposing a towing safety management system with specific procedures for crewmembers and shore side personnel to follow that will most likely ensure safe operations. The safety management system will be required to be audited by third party auditors to ensure that all vessels and employees within the company follow written protocols.
According to the Coast Guard, in May of 2002 a towboat hit the I-40 bridge when the operator became medically incapacitated resulting in 14 deaths and $60 million dollars in bridge damage. There were also eight other incidents over a ten-year period where towing vessel operators died while operating a vessel. As a result, the Coast Guard is proposing to require a "pilothouse alerter system" which sounds an alarm if there is no rudder movement over a period of time.
The Coast Guard proposed rule references a study which shows that typical towing industry watch systems of six-hours-on and six-hours-off can have a degrading trend with alertness and performance levels comparable to someone with a blood alcohol concentration of up to 0.1%. As a result the Coast Guard is considering regulating working hours and adopting crew endurance management programs.
This is going to be a major change for the towing industry. The greatest challenge for companies will be getting captains and crews to conform to a system of written policies and procedures. Click here to read to proposed rule.
When it comes to what constitutes full implementation of a safety management system such as the International Safety Management (ISM) Code, there seems to be a disconnect between what different stakeholders believe to be adequate. Different flag states, recognized organizations, class societies, and port state control authorities enforce the code to their own standards, not to mention each individual auditor's experience and subjective opinions. The real disparity becomes painfully clear during times of major accident investigations and litigation, when everything is put under a microscope and the level of implementation that was considered "satisfactory" at the last audit can now constitute alleged negligence.
A company may have an acceptable safety management system and a satisfactory level of implementation, that is, until there is a serious casualty. Once there is a serious casualty, the implication can be that whatever was being done before the accident was obviously inadequate, regardless of how many enforcement officials and auditors had blessed the program previously. This is not what the ISM was intended to be, but it is unarguably what it has evolved into. Nowhere is this more apparent than in the U.S. Coast Guard's report of investigation on the Deepwater Horizon disaster in the Gulf of Mexico. The report finds fault with all stakeholders and pulls no punches.
There must be clear and consistent expectations if ISM is going to be implemented as designed. It seems the U.S. Coast Guard may now be thinking in a similar fashion. In the Deepwater Horizon report the recommendations include an investigation to see if a change to the current inspection and enforcement methods is required to increase compliance with the ISM code. Increased scrutiny of adherence to policies and procedures may be on the horizon. Vessel operators, including towing vessel operators in the U.S. who will soon be required by regulation to implement a safety management system, should start now making sure that their policies and procedures are actually being followed.
Say what you do, do what you say, and be able to prove it!