A U.S. Coast Guard admiral testified to Congress that the service has not been aggressively ensuring that vessels’ salvage and firefighting plans comply with federal regulations.
Rear Adm. Paul Thomas told a House subcommittee in May that because of a lack of resources, the Coast Guard “has not been aggressively enforcing the compliance” of vessel response plans filed under federal salvage and marine firefighting (SMFF) regulations.
The 2009 rules on the availability of 19 types of salvage services stem from the Oil Pollution Act of 1990 (OPA 90) and are designed to prevent spills caused by a fire or explosion on a vessel. The enforcement of those rules was the subject of the May 3 hearing by the House Subcommittee on Coast Guard and Maritime Transportation.
Thomas, as assistant commandant for prevention policy, does not oversee compliance with the SMFF regulations. His assertion that insufficient resources prevent checking on whether shippers and response companies have proper plans in place aligned with concerns raised by the subcommittee chairman and some industry stakeholders.
Subcommittee Chairman Rep. Duncan Hunter, R-Calif., asked the Coast Guard official why vessel insurers don’t require better compliance to reduce their risk. “I think one of the reasons, and I think that most of the panel members here would agree, is because the Coast Guard has not been aggressively enforcing the compliance,” Thomas said.
Hunter and Nicholas Nedeau, CEO of Rapid Ocean Response Corp., identified what they said was a serious deficiency: The salvage industry does not have vessels situated to respond quickly to offshore fires. Hunter noted that when the 360-foot roll-on/roll-off vessel Grey Shark caught fire off New Jersey in 2015, it burned for four days. “The salvors didn’t put the fire out in the ocean,” the congressman said. “They brought (the ship) all the way back (to New York Harbor) as it burned and then the New York Fire Department put it out at the dock like they put out a house fire.”
Nedeau commented that “the shocking admission by the Coast Guard that it cannot, and is not, enforcing its own marine firefighting rules … is a disaster just waiting to happen. Insurers should insist upon a dedicated network of fire response vessels — instead of taking their chances on the current and risky ‘vessel of opportunity’ approach to emergency response.”
He added in a subsequent interview that “there is no record of any enforcement at all.”
Ryan Gilsenan, a maritime attorney at Womble Carlyle in Charleston, S.C., said after the hearing that “the financial and legal risk to vessel owners and P&I (protection and indemnity) insurers may potentially be much higher than anticipated.”
“As an advocate for shipowners and operators, I am particularly concerned that if the current vessel response plans — although seemingly compliant on paper — result in an unduly delayed response, then the shipowner could potentially be subjected to punitive damages, fines and other penalties for failure to comply with the SMFF regulations (subject to defenses),” Gilsenan said. He added that a violation may be considered a strict liability offense regardless of whether it was done negligently, unknowingly or willfully. That would mean “the responsible party may no longer enjoy limited liability under OPA 90.”
American Salvage Association President Todd Schauer told the committee that the “false allegations made that these companies are not willing or contractually obligated to respond or somehow lack the resources to meet response requirements” were “unfounded propaganda put forward by a single commercial interest” trying to monopolize the field. He was referring to Rapid Ocean Response but did not mention the company by name.
Nedeau said that local tugboats are typically the only fire response vessels and are often unavailable because of other jobs, and their crews are typically not certificated to operate offshore. Rapid Ocean Response’s proposed solution is for the company to build a fleet of 20 firefighting response boats similar to the one it already has in operation. The 64-foot Fort Ripley, based in Charleston, can travel at more than 30 knots.
Schauer said each response contract includes “a statement of capability and commitment to respond within the required … times,” adding that the contracts are reviewed by the International Group of Protection & Indemnity Clubs. He noted that the agreements contain qualifying statements that all necessary resources may not be immediately available and may have to be brought in from other locations.
“No SMFF resource provider … can warrant 100 percent availability of resources unless multiple backup is provided,” Schauer said. “Twenty-four-hour availability of each supporting resource in each location was never intended by the SMFF regulations. Such a commitment to have the vast myriad of SMFF support resources in all U.S. ports and for all U.S. coastal and offshore areas would be absolutely cost-prohibitive for the salvor and its clients.”
Capt. Joe Loring, the Coast Guard’s chief of marine environmental response policy, told Professional Mariner that the Coast Guard “remains committed to protecting our ocean and coastal environment, and one way we endeavor to protect these important areas is to verify compliance with SMFF. The Coast Guard instituted a new scenario-based approach to SMFF verifications in April 2017 to allow for the independent evaluation of SMFF services. Excellent SMFF responses to date are something the entire response community should take great pride in.”