During the early morning of Sept 2, 2019, the U.S. Coast Guard (USCG) Sector Los Angeles/Long Beach received an abrupt distress call.
“Mayday, mayday, mayday! Conception. Platts Harbor, north side Santa Cruz. Help [unintelligible] three-nine P-O-B. Help. I can’t breathe!”
Conception was a 75-foot-long dive boat anchored off Santa Cruz Island that caught fire in the middle of the night. When the fire started, one crewmember and 33 passengers were asleep below deck. As the wheelhouse began filling up with smoke, the captain was able to radio a quick distress call before jumping overboard. The remaining five crewmembers who were above deck tried to free the 34 people stuck below, but every access point was either engulfed in flames or unsuitably situated to allow the passengers and crewmember to be rescued. Tragically, all 34 people perished in the fire.
Regardless of the source of ignition, the National Transportation Safety Board (NTSB) concluded the probable cause of the tragic accident was the failure of Conception’s owner. The ship’s captain, Jerry Boylan, also was convicted of one count of misconduct or neglect of a ship officer in late 2023 and sentenced to four years in prison.
Specifically, the NTSB determined, the vessel’s owner failed “to provide effective oversight of its vessel and crewmember operations, including requirements to ensure that a roving patrol was maintained, which allowed a fire of unknown cause to grow, undetected, in the vicinity of the aft salon on the main deck.”
NTSB Chair Jennifer Homendy stated, “I hate the term ‘accident’ in this case because, in my opinion, it is not an accident if you fail to operate your company safely.”
Two significant legal reforms emerged from the Conception disaster. First, the Shipowner’s Limitation of Liability Act, which can serve as a cap on the potential damages assessed against a vessel’s owner resulting from a marine casualty, was amended to exclude small passenger vessels. After the fire, the Conception’s owner sought the protections afforded by the Limitation Act in federal court. In response, Congress amended the Limitation Act to remove the right of owners of certain small passenger vessels to seek limitation from liability.
Second, the USCG passed new regulations pertaining to fire safety on passenger vessels. Under these new rules, vessel operators must install interconnected fire detection systems throughout their vessels; install portable fire extinguishers on their vessels; develop safe handling procedures for the operation and storage of potentially hazardous items, such as rechargeable batteries; train crews on firefighting and emergency egress; have at least two unobstructed means of escape, install monitoring devices to ensure the night watchman stays awake; and conduct passenger emergency escape drills.
Conception is one of the many examples of why safety aboard vessels is of the utmost importance. While a lit cigarette or an electrical malfunction can cause fires on land, these same risks are greatly exacerbated at sea where help may be far away. While the high-profile Conception disaster is an extreme example of what can go wrong, there are no maritime safety issues too small to ignore. Here, we will identify and discuss some recent trends in vessel safety that arise in both commercial and recreational maritime settings that are worth exploring.
Heavy-weather marine casualties
The USCG Office of Investigations and Analysis tracks the number of vessels lost to heavy-weather events. USCG Sector New Orleans estimates roughly 50 percent of the vessels in its jurisdiction that are lost to heavy-weather events are lost to forecasted events, such as hurricanes. But the other 50 percent of vessel losses caused by weather are lost in sudden heavy-weather events, such as wake lows, microbursts and derechos. These sudden heavy-weather events can be difficult to forecast, and the associated risks may be unknown to a vessel’s crew when they get underway. This was highlighted all too well by the loss of Seacor Power in 2021, which capsized in a wake low that produced squalls of nearly 100 knots.
Unfortunately, the number of vessels lost to sudden heavy-weather events remains relatively constant year to year. The USCG recognizes this issue and seeks to ensure that all mariners continue to take severe weather seriously, because any thunderstorm or severe system can manifest conditions that are extremely dangerous to vessels underway in a variety of geographic locations. To adequately prepare for sudden heavy-weather events (which are not always forecast), the USCG recently published the following recommendations to mitigate vessel losses caused by sudden heavy-weather events:
• Ensure that your vessel is equipped with at least two different and reliable methods to obtain information about changing weather conditions.
• Maintain a proper lookout at all times to recognize changing environmental conditions.
• Ensure that one or more individuals on the vessel have the designated responsibility to check weather on a regular basis and share updates with others on board.
• Understand your vessel’s operating limitations and key factors, such as vessel loading, downflooding points and profile and sail area with respect to weather conditions.
• Prepare for heavy-weather events ahead of time by training your crew and passengers on how to respond to heavy weather and to implement heavy-weather drills.
• If weather conditions start to deteriorate, take quick and decisive action to alter course or to abort an operation to protect human life. Build in a safety buffer that allocates time for storm preparation and evasion operations.
Considering the recent recommendations from the USCG, implementation of a strong policy or training program regarding sudden heavy-weather events is not only a good, commonsense practice in ensuring vessel safety, but it could also assist a vessel owner in limiting their legal liability should a sudden heavy-weather incident occur.
Drug and alcohol use on commercial vessels
There has been an uptick in the incidence of drug and alcohol use aboard commercial vessels in recent years. Currently, USCG Sector New Orleans has roughly 80 “suspension and revocation” cases in progress against the licenses and credentials of professional mariners who have tested positive for drugs or alcohol while aboard a vessel or working in the marine industry. USCG Sector New Orleans estimates this is an all-time high in intoxication-related offenses. In addition to the numerous revocations and suspensions handed down, USCG Sector New Orleans regularly receives anonymous tips and “whistleblower” reports from across southeast Louisiana about mariners either drinking or using substances while on the job or underway.
Existing USCG regulations strictly forbid professional mariners from using alcohol or drugs while on duty. Employers of professional mariners are required to exercise due diligence in ensuring their mariners are not standing watch while intoxicated. Violations of these rules carry substantial penalties. A mariner’s punishment for operating a commercial vessel while under the influence of drugs or alcohol typically includes thousands of dollars in fines and the loss of their merchant mariner’s license. For the vessel’s owner or operator, the failure to enact due diligence to ensure the sobriety of their crew can create legal liability that pales in comparison to any USCG fine.
Sexual assault and sexual harassment on vessels
While fires, sinkings, inclement weather and intoxication are all obvious vessel safety issues, there is one major topic that has been receiving substantial attention. In December 2022, Congress passed the Safer Seas Act (SSA) to combat sexual assault and sexual harassment (SASH) taking place on vessels that were either not reported or not addressed in a meaningful manner. This law was passed in response to the “Midshipman X” scandal that spotlighted the prevalence of SASH in the maritime industry. On Sept. 28, 2021, the anonymous Midshipman X published an account of the horrific sexual abuse she endured while serving as a cadet during the U.S. Merchant Marine Academy’s Sea Year program. The SSA, enacted thereafter, established new reporting instructions and procedures for owners and operators of U.S. flag commercial service vessels to report any incidents of SASH.
The SSA grants the USCG broad authority to revoke or suspend the licenses of mariners who commit sexual assault or harassment, in addition to potential criminal penalties. Also built into the SSA are the additional requirements of crew training, reporting protocols, changes to the safety management system, surveillance systems, signage on vessels and cabin master keys as practical measures to reduce these serious offenses. In December 2023, the USCG published a series of frequently asked questions in Maritime Safety Information Bulletin (MSIB) 13-23 to practically assist vessel owners with implementing these measures.
The SSA also includes mandatory reporting requirements and penalties for responsible entities that willfully fail to report SASH offenses. The penalty for failing to report is a civil penalty of $25,000 plus $500 for each day of noncompliance, with a maximum $50,000 per violation. The USCG also published guidance on how to make a SASH report and how to send the report to the USCG.
All employers and vessel owners and operators should be keenly aware of these new SSA requirements and should refer to the latest USCG guidance on the implementation of these measures. Failure to do so could lead to increased liability under the Jones Act and could create claims for unseaworthiness under general maritime law. The Jones Act requires employers to provide their crews with reasonably safe places to work. General maritime law requires a vessel owner or operator to provide a vessel reasonably fit for its intended use. Failure to do so could render the vessel unseaworthy. Should an employer fail to abide by the SSA and fail to implement measures that mitigate SASH offenses, that employer could face increased liability as this new area of the law develops.
The bottom line
Significant maritime events or incidents often lead to substantial changes in maritime laws and regulations. What constitutes best practices among vessel owners can change as quickly as the weather. It is important for maritime employers and crewmembers to stay ahead of the recent trends and adjust management of their vessels and crews accordingly. •
Austin Glascoe is an associate in Jones Walker’s Maritime Practice Group and a member of the maritime litigation, arbitration and dispute resolution team.
Grady Hurley is a partner in and co-leader of Jones Walker’s maritime litigation, arbitration and dispute resolution team and co-chair of the firm’s Energy, Environmental & Natural Resources Industry Team. Since 1979, he has focused on maritime, oilfield and energy litigation. He is the current president of the Maritime Law Association.