Critical decisions in towing vessel inspection
January 31, 2013
It seems that
whenever a new rulemaking is in progress an entire new industry evolves. This
was the case with the Oil Pollution Act of 1990, as well as the Maritime
Transportation Security Act of 2002.
Both, however, may pale in comparison to
the economic opportunity provided by Subchapter M. The towing vessel inspection rule may prove to be a
potential gold mine for some professional services companies and maritime
entrepreneurs. Unfortunately, for towing vessel operators, the amount of
information being dumped on them may add confusion and stress when they try to make the best decisions for their companies.
of Confusion — Subchapter M of Title 46 of the Code of
Federal Regulations (CFR) was established by the Coast Guard to
regulate the inspection of U.S.-flagged towing vessels. In addition to the
standard protocol of having the Coast Guard send a marine inspector to inspect
and certify a towing vessel, the proposed rule for Subchapter M offers an
option for operators to adopt a Towing Safety Management System
(TSMS). Vessel operators should understand that this is only an option. There
is no requirement in the proposed rule for any towing vessel to have a safety
management system of any kind, including a TSMS. Even if a company already
operates under a safety management system, there is no requirement in the
proposed rule for such a company to choose that option for Subchapter M
compliance. Such companies can continue to operate under their safety
management system but choose the standard Coast Guard vessel inspection option
in order to obtain their certificates of inspection (COIs).
Liability — The
TSMS option permits certain third-party organizations to
conduct audits and surveys on behalf of the government. There are some
unanswered questions regarding the liability of third-party organizations and
surveyors under Subchapter M. While there have been some interesting discussions,
there is still no answer. Those answers are best left to the attorneys.
But I offer these recent instances to consider: after 10
years of litigation, the American Bureau of Shipping (ABS) was cleared of
liability in the case of the M/V Prestige,
a vessel that broke apart, creating a large oil spill off the coast of Spain; and
a case was dismissed against the Coast Guard, where the Coast Guard was sued for alleged errors made during certification of a vessel which eventually
capsized resulting in loss of life. Yet a third-party flag surveyor was
sentenced to prison for making false statements and certifying a vessel as
safe, which was subsequently found to be deficient by the Coast Guard. So what
will be the liability issues for third-party organizations acting on behalf of
the government? I hope Coast Guard headquarters will come up with some
guidance on this issue.
remains to be seen if Subchapter M will be a gold mine or a land mine for
third parties. But one thing is certain: Towing vessel operators should
proceed with caution.