Marine Casualty Reporting
On the water, things go bump in the night … and day, in fog and heavy weather; mostly ships, but also boats of all kinds and the people aboard them. Reaching vessels in distress quickly to render aid or quell an oil spill’s spread critically affects the success of search-and-rescue (SAR) and spill-response operations. Timely capturing causal information relating to a casualty’s origin through investigation serves to teach regulators and industry alike, and sanctions attendant to reporting obligations incentivize, deter and punish those regulated. To those ends, federal marine casualty reporting regulations apply to defined marine casualties.
These regulations pertain to marine vessels generally, meaning crafts practically designed to carry people or things over water. Vessels encompass ships, which during the sailing era meant square-rigged sailing vessels or barks having three or more masts (think of the U.S. Coast Guard’s training cutter Eagle). Today a ship is generally understood to mean large oceangoing vessels propelled by mechanical engines, viz. container ships, tankers, bulk carriers, and cruise ships. The regulations apply to any marine casualty occurring in U.S. navigable waters, U.S.-flag vessels wherever located, and foreign-flag vessels within waters subject to U.S. jurisdiction, including the exclusive economic zone (EEZ), which extends out 200 nautical miles from U.S. shores.
When they reasonably believe a vessel is lost or imperiled, the vessel’s owner, charterer, managing operator or agent must advise the cognizant Coast Guard rescue coordination center (RCC) or nearest SAR unit. As for reporting specific marine-casualties, the litany is long. After addressing immediate safety concerns, the owner, agent, master, operator or person-in-charge must notify the nearest Coast Guard sector office when any of the following occurs: an unintended grounding or unintended allision (the striking of a stationary object by an underway vessel) with a bridge; an intended grounding or allision that creates a hazard to navigation, the environment or the vessel’s safety; the loss of main propulsion or steering system maneuverability; a material and adverse impact on the vessel’s seaworthiness; loss of life; personal injury requiring medical care beyond first aid; property damage of more than $25,000; or significant harm to the environment
If the incident involves a reportable oil pollution spill (basically anything that violates water quality standards or creates a sheen on the water), a report is required to the Coast Guard’s National Response Center. A similar requirement exists for a hazardous-substance release. Within five days of the incident, the owner, agent, master, operator, or person-in-charge is also required to submit a completed and signed CG-2692 form detailing the factual circumstances surrounding the incident. The failure to report exposes the obligors to a civil penalty (currently up to $43,678 adjusted for inflation) and in some cases to criminal prosecution.
A curious issue is whether a state pilot conning (maneuvering and navigating) the vessel qualifies as a person-in-charge obligated to report a marine casualty. The Coast Guard thinks so, but pilots take the position that they do not serve as the person-in-charge under pilotage—the master ultimately remains in command.
The pollution-reporting requirements place the reporting party in a bit of a catch-22, because the failure to report exposes that party to civil penalties and criminal liability exposure (up to five years in prison and/or fine) and then having reported, the negligent discharge of oil also subjects that same party to both civil and criminal liability exposure (up to one year in prison and/or a fine). Although the notification itself cannot serve as a basis to prosecute natural persons (human beings), the way the law reads a prosecutor may employ evidence obtained directly or indirectly from a notification. By contrast, corporations, which do not enjoy a privilege against self-incrimination, must report a discharge but still face prosecution on other grounds, whether an independent source of information exists concerning the spill. For individuals, a knowing violation subjects the perp to three years in prison and/or fine.
Pursuant to the Oil Spill Prevention and Response Act (OSPRA), Texas also requires the responsible party to report oil pollution spills in state waters to the Texas General Land Office, which ironically has jurisdiction over oil spills occurring in state navigable waters. The Texas Natural Resource and Conservation Commission (TNRCC) governs hazardous materials spills occurring anywhere, and oil discharges occurring on Texas lands. Some question exists as to whether state-reporting requirements are preempted by federal law, but a responsible party should not run any unnecessary risks by failing to report to the governing state agency.
Once the report is made, the Coast Guard will ordinarily undertake a marine casualty investigation for incidents on or affecting U.S. navigable waters. The Coast Guard may also undertake marine casualty investigations of collisions on the high seas involving foreign-flag cruise ships that carry U.S. citizens to and from the United States. The scope of a marine casualty investigation depends upon the size or severity of the incident and, if sufficiently grievous, may involve a joint Coast Guard–National Transportation Safety Board (NTSB) hearing. Major-marine casualties are those that entail the loss of six or more lives, the loss of a power-driven vessel greater than 100 gross tons, estimated property damage exceeding $500,000, or a serious threat to life, property or the environment by hazardous materials. The NTSB may investigate a major-marine casualty involving significant issues relating to Coast Guard safety functions, a casualty concerning a Coast Guard and non-public vessel, and at least one fatality or $75,000 in property damage, or otherwise when the Coast Guard’s commandant agrees.
The takeaway here is—if in doubt, report. The Coast Guard and NTSB will find out sooner or later. A marine casualty certainly will ruin your day, but no need to make it worse.
"Marine Casualty Reporting," by Keith Letourneau was published in Texas Lawyer on October 11, 2022.
Reprinted with permission from the October 11, 2022, edition of the Texas Lawyer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.