Legal Matters

Thursday, May 25, 2000
Senator Introduces Bill to Overturn Intertanko Decision Senator Slade Gorton (R-Wash.) introduced the "States Prevention of Oil Tanker Spills Act" (S. 2506), which seeks to reinstate Washington state oil tanker safety laws overturned by the Supreme Court in Intertanko v. Locke and United States v. Locke.

In a press release, Senator Gorton said, "I disagree with the Court's decision, because I believe Washington State should be allowed to protect its shores as it sees fit." The Gorton legislation would reinstate the right of all states to adopt additional standards beyond existing federal requirements governing the operation, maintenance, equipment, personnel and manning of oil tankers.

While the legislation would apply to all coastal states, Gorton's interest is focused on recently overturned Washington statutes. Congressman Jack Metcalf (R-Wash.) introduced a similar bill in the House (H.R. 4365).

Appropriations Process for Fiscal Year 2001 Gets Underway When the House and Senate returned from their Easter recess period, one of the first orders of business was to begin the appropriations process for FY 01, which begins on October 1, 2000. Just before the recess, the FY 01 budget resolution had been adopted by both houses. That resolution provided for approximately $600 billion in discretionary spending, an increase of about $10 billion over the amount appropriated in FY2000, but $23 billion below the amount requested by President Clinton.

This $600 billion is allocated among the thirteen appropriations subcommittees for their use in funding programs under their jurisdiction for the coming year. The Energy and Water Development Subcommittee, which funds the USACE, received an allocation in the House of $21.7 billion (vs. $21.1 billion in FY2000), which is almost $1 billion below the Administration request. The Senate allocation was somewhat better at $22.4 billion.

Out of this allocation, the subcommittee must fund the Department of Energy, the USACE, and water projects of the Bureau of Reclamation. Last year, the USACE received approximately $4.1 billion in total funding. The administration this year has requested $4.06 billion.

Consideration of the Department of Transportation appropriations bill, which funds the USCG, has already begun. On May 8, the House Transportation Appropriations subcommittee marked up its FY 01 bill. That measure provided a total of $4.6 billion for the USCG, an increase of $594 million over FY 00 enacted levels. House passage of this bill was expected before Memorial Day, with Senate action anticipated in June.

Legislation to Regulate Non-Tank Vessels Stalled in Alaska Legislation to regulate non-tank vessels in Alaska appears to be dead in this year's legislative session in Juneau. Senate Bill 273 (SB 273), originally introduced by State Senate President Dru Pearce (D-Anchorage) in January, would have required self-propelled watercraft of 400 gross registered tons or greater and railroad tank cars to have an oil spill contingency plan and certificate of financial responsibility. The bill's original language did not restrict the requirements to self-propelled vessels and would have required non-tank barges to meet the requirements of the law.

SB 273 passed in the Senate, but was stymied in the House by Representative Ramona Barnes (R-Anchorage), chair of the House Committee on World Trade and State/Federal Relations, who questioned the economic impact of the proposed legislation on the Alaska economy. A resolution was introduced in the House on to establish a 13-member task force, chaired by either the commissioner or deputy commissioner of the Alaska Department of Environmental Conservation, to evaluate the requirements of SB 273 to determine their impact on businesses in the state. This analysis is also designed to look at the issue of redundancy and overlap with existing federal law.

Initial VTS New Orleans Rulemaking Proposed The USCG has released a notice of proposed rulemaking setting up the VTS zone for the deepdraft portion of the Mississippi River. The proposed rule would establish the VTS zone extending from 20 miles north of Baton Rouge to beyond the mouth of the Mississippi River at Southwest Pass. The USCG states this entire area will eventually be covered by VTS and would require vessels utilize transponder/electronic chart units to communicate their positions and identities to other vessels.

However, that system is more than two years away from implementation and the USCG does not have the resources to monitor the entire 300-mile VTS zone without the Automated Identification System (AIS) in place. Instead, the proposed rule sets up a "VTS Special Area" consisting of the Mississippi River between miles 93.5 and 95 ? the area around Algiers Point in downtown New Orleans. This area has traditionally been monitored by two light operators who warn vessels of up- or downbound traffic and control movements during high water periods.

The proposed rule simply moves those functions into the newly built Vessel Traffic Center at One Canal Place. The proposed rule also changes some procedures and definitions, especially those covering hazardous vessel operating conditions. The USCG will propose the regulations which actually require vessels to carry AIS units at some point in the future, after the units have been tested and international standards are in place.

Risk Assessment of East River Nears Completion The East River Risk Assessment Subcommittee, a subcommittee of the New York Harbor Safety, Navigation & Operations Committee (Harbor Ops), has provided a draft report on vessel operations on the East River. Serving on the subcommittee are representatives of the USCG, USACE, NOAA, Port Authority of New York & New Jersey, AWO members, and owners and operators of recreational and commercial vessels and seaplanes. The assessment was initiated to review commercial and recreational vessel operations and interactions, the adequacy of range lights and aids to navigation, and navigation problems posed by waterway structures such as bridges and marinas.

The risk assessment focused on types of accidents, environmental incidents and waterway usage on the East River in order to make specific recommendations to reduce or mitigate navigational and operational risks. The subcommittee reviewed the type and frequency of vessels utilizing the East River to identify safety measures that will enhance the safe navigation of the East River and not impose burdensome requirements on vessel operators.

The tug and barge industry dominates the frequency of transits category with more than 16,000 trips annually, 77 percent of the total number of vessel transits. Tankships and passenger vessels amount to approximately 19 percent of vessel traffic, and bulk carriers, freight ships, container, research and industrial vessels represent about 4 percent. The preliminary recommendations include safety measures of structural, communication and operational dimensions, such as:

· Install a range light located in Manhattan for track keeping when eastbound on the East River and the enhancement of westbound day markers;

· Conduct soundings and surveys of reported shallow spots in the waterway;

· Install additional aids to navigation to mark known high spots in the waterway;

· Enhance communications between the USCG and bridge owners regarding rehabilitation work and the location to "travelers" extending from the bridge;

· Conduct an analysis of "true" bridge height given the influence of roadway volume and weather conditions through a real time sensor system;

· Enhance communications between recreational boaters, dinner boats and large commercial vessels with the aid of Vessel Traffic Services (VTS) New York;

· Initiate an outreach education program through USCG Auxiliary local power squadrons;

· Develop a communications protocol for seaplanes and VTS that includes security calls before take-off and landing;

· Limit access to the East River for all vessels during VIP arrival/departure to avoid causing vessels to alter course under extreme tidal conditions; and,

· Increase the frequency of VTS broadcasts to vessels transiting the East River during time of restricted visibility.

New Jersey Considers Proposal to License Docking Masters The Board of Commissioners of Pilotage of the State of New Jersey has proposed revisions to its regulations to provide for the licensing of docking masters. The proposal has met with strong opposition from the maritime community in New Jersey. Vessel owners and operators view the proposal as an intrusion on the traditional responsibilities and obligations of the master of a vessel and an individual engaged to provide pilotage services.

The proposal references the qualifications needed to secure a "qualified docking master" license, which will generally grandfather existing docking masters. The proposal also outlines an apprenticeship program for docking pilots, the requisite number of dockings/undockings, and the documentation needed to secure a license.

In most instances, the New Jersey regulatory proposal reflects the licensing requirements stipulated in the New York legislative proposal.

However, in several instances, the regulatory proposal attempts to vest additional authority in the state licensed pilot (bar pilot) in stipulating "there shall be no exchange of the conn when the pilot determines that an exchange would pose a risk to persons, property or to the environment."

The exchange of the conn between the state licensed pilot and the federally licensed docking pilot is usually executed with the agreement of both pilots and the approval of the master of the vessel. It is solely the master's obligation to relieve a pilot or refuse to give the conn to a pilot when s/he feels circumstances warrant such action. It is the recognition and adherence to traditional protocol that determines the liability for damage to a vessel or structure.

Maryland Passes Docking Pilot Licensing Legislation Over the past several years, the State of Maryland has considered several legislative proposals related to the licensing of pilots who provide docking services within the Port of Baltimore. In April, the Maryland Senate (S.237) and House (H.766) passed legislation establishing a "State Board of Docking Masters" to oversee the qualification, certification and licensing of docking masters.

The Board is composed of five members ? two docking pilots, two representatives of the general public, and one representative of a towing company. The Board's authority also includes setting rates for docking pilot services, establishing a rotation system, and fixing the number of licenses to be issued to individuals who qualify for a "docking master" license.

Individuals seeking a "docking master" license need to provide independent verification they have completed 250 dockings, shiftings or undockings on or before October 1, 2000. The applicant must have five years experience as a licensed master or mate on tugs or inspected vessels, including at least two years experience as master aboard an assist harbor tug. The applicant must also hold a first-class pilot license for unlimited tonnage, a masters license for steam or motor vessels, and unlimited radar observer endorsement. The Board may require radar training (ARPA), compliance with a drug testing program, completion of an accredited bridge resource management course, and charge a fee of $600 per applicant.

The legislation also establishes a "docking pilot training program," which essentially requires applicants observe 300 dockings/undockings from the bridge of a ship; to perform a minimum of 250 dockings, shiftings or undockings under the supervision of a licensed docking master; and to meet the physical requirements for a docking pilot's license as determined by the Board.

The State Attorney General will review the legislation for the next 60 days. If approved, a bill will be sent to the Governor for review and signature.

New York Harbor Regulated Navigation Area In early 1999, the USCG established a Regulated Navigation Area (RNA) encompassing the entire Kill Van Kull Deepening Project. The RNA was needed to ensure the safety of vessels transiting the restricted channels during blasting and dredging operations. In addition, the USCG plans to implement a Vessel Traffic System (VTS) Measure, for vessels entering or departing the Kill Van Kull during specific channel excavation operations. The RNA regulations currently in place require:

· No vessel shall enter or transit any work area where drill barges and/or dredges are located without permission of Vessel Traffic Service New York (VTSNY);

· No vessel shall enter the RNA when advised by the drill barge or VTSNY that a misfire has occurred;

· Each vessel transiting the vicinity of work areas is required to do so at a no wake speed;

· Tugs with tows are defined as a tug with a vessel or barge in tow, alongside or being pushed;

· Hawser or wire length on tug/barge units must not exceed 100 ft., measured from the towing bit on the tug to the hawser connection on the barge;

· Vessels 300 gross tons or greater and tugs with tows are prohibited from meeting or overtaking other vessels when transiting alongside an active work area;

· Vessels 300 gross tons or greater and tugs with tows transiting with the prevailing current are regarded as the stand-on vessel;

· Prior to entering the RNA, the pilot or operator of each vessel 300 gross tons or greater or tug with tow shall ensure that she/he has sufficient propulsion and directional control to safely navigate the area; and,

· The Captain of the Port may, upon request, authorize a deviation from any RNA regulation. An application for a deviation must be received 24 hours before the intended operation or transit. The most recent VTS measure promulgated by the USCG requires all vessels 300 gross tons or greater, excluding tugs with tows, and more than 500 ft. in length engage assist tug(s) with horsepower equal to 10 percent of the gross tonnage of the vessel.

DOT Releases Safety Data Improvement Plan At a multi-modal conference, the Department of Transportation (DOT) released its draft action plan for improving transportation safety statistics. The plan is the result of DOT's Safety in Numbers program, which focuses on the role of statistics in improving transportation safety.

To develop the action plan, DOT sponsored four safety data workshops, each focusing on a different mode of transportation, in September and October of 1999. DOT used the feedback from these workshops in developing a draft action plan to improve safety statistics for all modes of transportation. The plan addresses six areas identified at the fall 1999 workshops as critical to improving transportation safety data. These areas include:

Establishing a lead agency and ensuring intermodal collaboration: DOT's Bureau of Transportation Statistics (BTS) will serve as the lead agency for implementation of the action plan and will work with experts from each mode to facilitate effective intermodal collaboration.

Developing an intermodal database: BTS has created the Intermodal Transportation DataBase (ITDB), which will serve as the organizing system for a combined transportation safety database. The goal of ITDB is to provide "one stop shopping" for transportation safety data and allow for better comparison of safety data across modes.

Developing data standards: DOT has formed a Committee on Transportation Statistics (CTSTAT) to develop data quality standards and determine highest priority safety data for in-depth analysis by CTSTAT.

Improving data quality: CTSTAT will complete an assessment of all major DOT data collection systems by winter 2001 and will continually analyze existing safety data for completeness and accuracy.

Expanding transportation resources: The National Transportation Library, an online library of transportation information maintained by BTS, will be expanded.

Conducting focused research projects to address specific data shortcomings: Based on the feedback received from participants at the conference, BTS will begin focused research projects to address specific data shortcomings, such as developing common denominators for safety measures.

Vessel Gaming Bill in California The California State Legislature approved a bill to allow an Indian tribe in the state to operate a gaming vessel between San Diego and Rosarito Beach in Baja, Calif. However, the bill was pulled from Gov. Gray Davis' desk, rather than risk a veto. The measure will remain with the legislature until a compromise can be negotiated.

Senate Bill 228, by Senate Presiden Pro Tem John Burton (D-Marin, San Francisco, Sonoma), was written specifically to accommodate the 213-member band of Viejas band of Indians in San Diego County. The tribe's partner in the venture is Commodore Holdings, a cruise ship operator based in Hollywood, Fla.

Enchanted Sun has 370 slot machines, 13 card tables, roulette and craps. The vessel, with a passenger capacity of 850, will make nine round-trip cruises a week, docking at a new pier being built at the Rosarito Beach Hotel.

Measure to Prohibit "Cruises to Nowhere" Senate Bill 2234, introduced by Sen. Tom Lee (R-Brandon, Fla.), would prohibit gaming on "cruises to nowhere" operating from Florida. The prohibition would apply to vessels that do not make an intervening stop in another state, or in a foreign country, where passengers could disembark.

Upon its introduction, the bill was referred to three different committees: Regulated Industries, Commerce and Economic Development and Fiscal Resources.

S.C. Bill Clears Committee The House Judiciary Committee approved a bill that would ban "cruises to nowhere" in the state of South Carolina. GeneralBill 4491, known as the Gambling Cruise Prohibition Act, would prohibit casino gaming on any voyage beginning and ending in South Carolina, during which the vessel does not make an intervening stop within the boundaries of another state or possession of the U.S. or a foreign country. It applies to all vessels, regardless of registry.

Legislation to Reduce Riverboat Licenses Among the bills under consideration during the current session of the Louisiana Legislature, is one that would eliminate the state's 15th and final riverboat gaming license. House Bill 55 would stop the state Gaming Control Board from issuing the 15th license. Currently, a total of 14 gaming boats are in operation, and five firms have applied for the final license.

The House Criminal Justice Committee voted 7-2 to move the measure, introduced by Gov. Mike Foster, to the House floor.

Reversal of Judge's Decision The Federal Maritime Commission (FMC), in a majority decision, reversed Chief Administrative Law Judge (ALH) Norman Kline's Initial Decision in which a complaint lodged by South Carolina Maritime Serivces, Inc. against the South Carolina State Port Authority (SCSPA) was dismissed.

The complaint asserts the SCSPA refused to give berthing space at the Port of Charleston to a Maritime Services' vessel, M/V Tropic Sea, because the vessel was sailing on "cruises to nowhere." However, the SCSPA did provide berthing space for a Carnival Cruises Lines vessel, M/S Inspiration, which also has an onboard casino and conducts "cruises to nowhere."

Maritime Services claimed the SCSPA violated provisions of the Shipping Act of 1984, by unreasonably refusing to deal with Maritime Services, by unreasonably preferring Carnival, and by unreasonably prejudicing or disadvantaging Maritime Services.

The SCSPA filed a Motion to Dismiss, citing several grounds. ALJ Kline dismissed the motion on the grounds that SCSPA is an agency of the state, and therefore immune to suits by private parties.

When neither party appealed the ALJ's decision, the FMC decided to review the ruling, with the aim of deciding whether the ALJ was correct in dismissing the complaint on sovereign immunity jurisdictional grounds.

Upon review, the FMC decided the doctrine of state sovereign immunity is meant to cover proceedings before judicial tribunals, not executive branch administrative agencies (such as the FMC). It said no compelling reason was offered by either the ALJ or the SCSPA to nullify the FMC's jurisdiction over state ports.

The FMC reversed the ALJ's order, ruling the doctrine of state sovereign immunity does not bar Maritime Services' claim against the SPSCA. It remanded the case to the ALJ for a determination on the merits of 1) the SCSPA's other grounds arguing for dismissal of the proceedings and, if the case is not dismissed; 2) Maritime Services' substantive claims of violations of the Shipping Act.

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