Texas Chicken Anyone?

Texas Lawyer

It’s hard to believe, but nearly every day within the narrow confines of the Houston Ship Channel (HSC), massive commercial vessels (some in excess of 80,000 deadweight tons) engage in a hydrodynamics dance face off. When two of these vessels meet bow to bow within the HSC (one heading inbound, the other outbound), they head directly at each other generally closing at a rate exceeding twenty knots (about 23 miles per hour). At a separation distance of about one-half mile, each turns four degrees or so to its starboard (or to the right for landlubbers out there). When both bows start to pass each other, the Houston Pilot aboard turns back to port (or left) to bring his or her respective vessel parallel to the other, and then as each vessel passes the other’s stern, turns further to port and then back to starboard to resume transiting down the center of the narrow HSC.

If you think that’s easy, consider that the current breadth of the HSC capable of handling deep draft vessels is about 530 feet and 45 feet deep (with twelve-foot-deep-barge lanes 200 feet wide on either side of the HSC), and wide-bodied tankers (Panamax class) are up to 165 feet wide.  So when side by side during this maneuver, there is not much room to spare between two such vessels. The Houston Pilots’ guidelines permit two vessels to meet when their combined widths do not exceed 310 feet (and 270 feet further up the channel). The remaining 220 feet or so has to buffer the two vessels from striking each other and also protect each from coming too close to the respective bank on its starboard side. The HSC is the only truly two-way channel for merchant vessels of this size in the United States, which allows the port to maximize commercial cargo throughput.

Try placing a pencil on a desk and controlling the direction of the lead head by pushing on the eraser, that’s what it’s like to steer a merchant ship with its screws (propellers) and rudders at the stern, except, of course, for the wind, current, traffic, visibility, and inability to see the bank, or to stop or start anything instantly. Ship movements require anticipation and prior planning in real time – no mean feat. What happens if a ship experiences bank effects? Check out this video: Collision of Liquefied Gas Carrier Genesis River with Voyager Tow (w/ bridge audio) – Bing video, which shows the liquefied petroleum gas carrier GENESIS RIVER taking a sheer off the downbound green side bank of the HSC and careening to the other side of the channel where it took another sheer and then sliced through a petroleum tank barge being pushed ahead by a towboat.

Amazingly, there is no navigation rule that explains or specifically authorizes this maneuver, colloquially known since at least the 1980s as the Texas Chicken. It developed out of necessity to handle the volume of commercial traffic on the HSC. The closest Inland Navigation Rule that governs is Rule 2, which places the onus on the vessel owner and master to take into account the “special circumstances of the case” lest they face a negligence finding in the event of a marine casualty. There is another rule, the Narrow Channel Rule (No. 9), that ordinarily requires vessels to stay as far to their starboard side of the channel as is safe and practicable, but for these ships in the HSC, that generally means transiting down the centerline (the only safe place where the vessels are free from potential bank effects) and only deviating when meeting another vessel. Like most vessel pilots in the United States, Houston Pilots become conning officers when they take over the piloting of a merchant vessel. They give rudder and engine order commands and navigate the vessel from the berth to sea or vice versa. Their actions are attributable to the vessel as compulsory pilots. So even if a merchant vessel would prefer to have its own master pilot a vessel at a particular port, the law requires a local pilot to do so, and such pilot’s acts or omissions become the responsibility and liability of the vessel and its owner.

So what happens following a marine casualty like Genesis River? The Coast Guard undertakes a marine-casualty investigation and parties in interest may participate during witness interviews.  Thereafter, the Coast Guard may conduct a more formal marine board of investigation and if the losses or damages are sufficiently significant, the National Transportation Safety Board (NTSB) may also join in the investigation and issue safety recommendations. If the event involves a foreign-flag vessel, the Coast Guard surprisingly does not have jurisdiction to take action against the Pilot’s federal license or state commission (the Coast Guard only possesses such authority over a U.S. flag vessel and its pilot’s federal license).  Instead, the Coast Guard can issue civil penalties if it chooses. Meanwhile, because the pilot was conning a foreign-flag vessel, the regulatory body that possesses jurisdiction over the pilot’s commission (issued by the Governor) is the local pilot board, and in Houston its Pilot Board Investigation and Recommendation Committee (PBIRC), which conducts its own investigation and makes recommendations about what action to take. If the casualty involves the discharge of oil, the Coast Guard could also refer the matter to the Justice Department for criminal prosecution.  The negligent discharge of oil into navigable waters of the United States constitutes a crime under the Clean Water Act, and no mens rea is required. Additionally, the parties can pursue civil actions against each other in federal district court to recover damages sustained, and arrest the offending vessel(s) as necessary to obtain security for such damages.

Plans are afoot by the U.S. Army Corps of Engineers to widen the HSC to 700 feet from Bolivar Roads to Morgan’s Point (Barbours Cut) and deepen the channel to 46.5 feet. Even so, ever larger container ships 1,100 feet in length (Neopanamax class vessels) are starting to call on the Barbours Cut container terminal. These ships are also up to 165 feet wide, and the pilot’s visibility is seriously impaired by the stacks of containers carried above deck. Though one-way traffic has been imposed by the Houston Pilots for vessels with a beam (breadth) of 105 feet or more above Boggy Bayou (the Bayport Channel), the Texas Chicken will continue to play a major role in managing the enormous volume of merchant vessel traffic (21,000 sailings annually every year) on the HSC.

“Texas Chicken Anyone?” by Keith B. Letourneau was published in Texas Lawyer on October 13, 2021.

Reprinted with permission from the October 13, 2021, edition of Texas Lawyer © 2021 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.