Published: January 4, 2021
By: Frederick B. Goldsmith
G&O lawyers Fred Goldsmith and Eric Iamurri authored “A Primer on Admiralty and Maritime Actions and the Federal Courts“, which appears in the January 1, 2021, edition of the Lawyers Journal, published by the Allegheny County Bar Association.
Published: June 7, 2019
By: Frederick B. Goldsmith
In a June 7, 2019, notice in the Federal Register the Coast Guard announces a “final rule,” effective July 22, 2019:
“This rule will affect mariners who have served on radar-equipped vessels, in a position that routinely uses radar for 1 year in the previous 5 years for navigation and collision avoidance purposes, and mariners who have taught a Coast Guard-approved or accepted radar course at least twice within the past 5 years. These mariners will no longer be required to complete a Coast Guard-approved or accepted radar refresher or recertification course in order to renew their radar observer endorsements. We are retaining the existing requirements for mariners seeking an original radar observer endorsement and for mariners who do not have 1 year of routine relevant sea service on board radar-equipped vessels in the previous 5 years or have not taught a Coast Guard-approved or accepted radar course at least twice within the past 5 years.” (emphasis supplied)
Your blog editor, who has practiced admiralty law for 28 years and taken and successfully passed a Coast Guard-approved radar endorsement course administered by The River School, is highly concerned about this rule change by the Coast Guard. It dangerously disregards the history of the radar endorsement rule, a rule intended to save lives.
The radar endorsement rule was promulgated in response to the Amtrak Sunset Limited train derailment disaster. On September 22, 1993, at 0245 hours, this passenger train was attempting to transit a railroad bridge over Big Bayou Canot, near Mobile, Alabama. The pilot of the towboat, the M/V MAUVILLA, operated by Warrior & Gulf Navigation, while navigating nearby in fog, did not know where his towboat and tow were on the river system. He thought he was still on the Mobile River and the barges forming his tow had touched up against other barges across the Mobile River.
In reality, his tow had struck the railroad bridge over Big Bayou Canot, with enough force to displace the center span on which the rails were mounted by 38 inches — more than a yard.
Unfortunately, the allision (when a moving vessel strikes a fixed object) of the MAUVILLA’s tow of barges with the railroad bridge was not forceful enough to trigger a track displacement warning to the rapidly-approaching train or train controllers, because the rails only bent, they did not break. So, the electrical circuit comprised by the rails remained intact, and the broken track alarm was never triggered.
Minutes later, the train, traveling at 72 miles per hour, derailed. Forty-two passengers and five crewmembers were killed. Many drowned or died from smoke inhalation. One hundred and three passengers were injured.
The National Transportation Safety Board (NTSB) found in its report (pdf copy) among the “Probable Causes” of the casualty was the MAUVILLA pilot had received no formal training on how to use his towboat’s radar:
“The National Transportation Safety Board determines that the probable causes of Amtrak train 2’s derailment were the displacement of the Big Bayou Canot railroad bridge when it was struck by the MAUVILLA and tow as a result of the MAUVILLA’s pilot becoming lost and disoriented in the dense fog because of (1) the pilot’s lack of radar navigation competency; (2) Warrior & Gulf Navigation Company’s failure to ensure that its pilot was competent to use radar to navigate his tow during periods of reduced visibility; and (3) the U.S. Coast Guard’s failure to establish higher standards for inland towing vessel operator licensing. Contributing to the accident was the lack of a national risk assessment program to determine bridge vulnerability to marine vessel collision.”
In its report, the NTSB recommended the Coast Guard beef-up its radar training requirements:
“In consultation with the inland towing industry, develop radar training course curricula standards for river towboat operations that emphasize navigational use of radar on rivers and inland waters”
“Upgrade licensing standards to require that persons licensed as Operators of Uninspected Towing Vessels hold valid river-inland waters radar observer certification if they stand navigation watch on radar-equipped towing vessels and to require that employers provide more specific evidence of training.”
Why did the Coast Guard relax the radar endorsement rule? It wrote today in its notice in the Federal Register the rule change was Congressionally-mandated by the Coast Guard Authorization Act of 2015, which required the Coast Guard to “harmonize the expiration dates of the mariner’s radar observer endorsement with expiration of the mariner’s MMC [Merchant Mariner Credential].”
But, the Coast Guard also wrote its relaxation of the rule was “[i]n response to [President Trump’s] Executive Order 13771 of January 30, 2017,” entitled “Reducing Regulation and Controlling Regulatory Costs.” This Executive Order arbitrarily directed federal agencies that “for every one new regulation issued, at least two prior regulations be identified for elimination….” So, the Coast Guard “asked the public and each of the Coast Guard’s federal advisory committees for suggestions on Coast Guard regulations, guidance documents, interpretive documents, and collections of information that should be removed or modified to alleviate unnecessary burdens.” (emphasis supplied)
The Coast Guard found requiring licensed mariners to take and pass a radar refresher course every five years “unnecessarily burdensome to mariners who serve in a position that routinely uses radar for navigational and collision avoidance purposes.”
In my view, the fallacy in the Coast Guard’s logic is the pilot of the MAUVILLA would theoretically also have had to “routinely use radar for navigational and collision purposes” in the months or years preceding the Sunset Limited tragedy.
Many professions, include medical, legal, insurance, and law enforcement, require annual or biennial hours of continuing education or recertification in relevant fields to maintain licensure, accreditation, or qualification. That’s not “unnecessarily burdensome,” particularly in a profession where lack of proficiency in equipment operation can result in death.
This is a well-produced National Geographic video on the disaster and its causes: http://www.dailymotion.com/video/x4i17ve
Published: May 28, 2019
By: Frederick B. Goldsmith
Mariners — just like everyone else with sore muscles and joints — are using CBD oil or ointment to manage their aches and pains. The problem is CBD oil can contain, even in small amounts, THC, or tetrahydrocannabinol, the active ingredient in marijuana. And when a mariner takes a random or post-accident drug test, typically via urinalysis, this can lead to a positive drug test for marijuana metabolites. As most mariners know, a positive drug test can lead to termination of employment, mandatory reporting of the positive test result to the U.S. Coast Guard, and initiation of license suspension and revocation (“S&R”) proceedings by the Coast Guard.
The Coast Guard considers marijuana a “dangerous drug.” In a 2018 decision, a Coast Guard administrative law judge, or “ALJ,” denied the appeal of a ship pilot who was the subject of a license suspension and revocation proceeding following his failure of a random urinalysis drug test which was positive for marijuana / THC metabolites. The mariner’s defense was he was a highly-experienced and well-regarded pilot with an “unblemished safety record” who had never before failed a drug test and had only used CBD ointment topically — he had not ingested it — to treat chronic knee pain. The CBD ointment did not require a doctor’s prescription. The salesperson at the legal marijuana store in Colorado told the mariner his use of CBD ointment would not have any psychotropic effects nor cause a failed drug test. The CBD ointment tube, however, included warnings stating the product is “infused with marijuana” and had “intoxicating effects.” There were also warnings not to “drive a motor vehicle or operate heavy machinery.” The mariner also testified he admitted he knew the THC ointment was a marijuana-based product that contained THC.
Testing of the CBD oil in question revealed it did contain THC, in an undetermined concentration. The ALJ found “the positive drug test was a result of the mariner using the CBD ointment.” The ALJ also found that the mariner’s seemingly innocent use of the CBD oil was not excusable under applicable law and regulation:
“Just because Respondent did not smoke or ingest marijuana recreationally or intend to gain an intoxicating affect when taking the CBD ointment, does not mean he did not run afoul of DOT drug testing regulations. Respondent argues the CBD ointment is not a dangerous drug. I disagree; the CBD ointment is clearly a dangerous drug prohibited by DOT regulations.”
Accordingly, the ALJ, deeming himself bound by applicable law and regulation, found the mariner a “user of dangerous drugs” and ordered his merchant mariner credential be revoked and surrendered to the Coast Guard. The ALJ also stayed the revocation process, though, finding the mariner was actively engaged in the Coast Guard’s “cure” process, including meeting with a Substance Abuse Professional, taking substance abuse classes, and submitting himself to 12 random, unannounced follow-up drug tests over the course of a year. The ALJ was to reconvene the proceedings to see if the mariner had fully complied with the “cure” process and thus if he was then entitled to get his license back.
Published: May 29, 2018
By: Frederick B. Goldsmith
The National Transportation Safety Board recently published online a concise and easy-to-understand 16-page pdf document entitled “Sinking of the US Cargo Vessel El Faro.” The ship sank on October 1, 2015, 36 nautical miles northeast of Acklins and Crooked Islands, Bahamas, and close to the eye of Hurricane Joaquin, which packed average wind speeds of 117 knots (134 miles per hour).
The document, an illustrated brochure, includes the timeline and track of the ship’s final voyage, highlights of key decisions made by the ship’s captain, examples of the disregarding by the captain of timely weather data, the lack of shoreside oversight by the ship’s owner, an explanation of how seawater got inside the ship, and several of the NTSB’s safety recommendations made to try to prevent a re-occurrence.
Published: March 26, 2018
By: Frederick B. Goldsmith
On March 19, 2018, the U.S. Coast Guard published a formal notice in the Federal Register, amending its regulations to increase the estimated dollar value of property damage required for vessel operators to immediately report the incident to this federal agency. A reportable property damage “marine casualty” increases to $100,000, from $25,000, and a “serious marine incident” in the property damage realm increases from $100,000 to $200,000.
The Coast Guard’s notice explains the increases are intended to catch-up with inflation and maintain the agency’s intent that “relatively minor” or “insignificant” property damage need not be reported.
The notice explains that while these increased thresholds may result in less frequent post-casualty drug testing in property damage incidents, mandatory drug testing following and reporting of other “reportable” incidents remains in place:
“We feel that the various types of reportable casualties detailed in 46 CFR 4.05-1 ensure we are made aware of those incidents that could indicate more serious problems and that may be averted in the future with timely intervention. These include groundings, bridge allisions, loss of propulsion or steering, certain equipment failures, incidents resulting in significant harm to the environment, fire or flooding that adversely affects the vessel’s seaworthiness or fitness for service, injuries beyond first aid, and loss of life—regardless of property damage cost.”