Towing Vessel Operators Must Choose Wisely - Part 1

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.

 


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…