Seattle Maritime Law Blog

Inspection of Towing Vessels: New Developments in Towing Safety Management Systems

John E. Lenker — Mon, 23 Jan 2012 14:39:57 -0800

The new Subchapter M to 46 CFR proposes prescribed procedures for vessel compliance in obtaining a Certificate of Inspection for all towing vessels equal to or greater than 26 feet in length; as well as some towing vessels less than 26 feet towing a barge carrying oil or other dangerous or combustible cargo in bulk. Following implementation of the final rule for Subchapter M, tug owners and operators will have two years to develop their Towing Safety Management System (TSMS) . . .and an initial Certificate of Inspection (COI) must be obtained within four years from the tug’s TSMS approval. Certain requirements for electrical or machinery systems are deferred until five years after the initial COI. Towing vessels moving oil or hazardous material in bulk have specific electrical and machinery requirements deferred until five years after the initial COI. Further information can be obtained on the Towing Vessel National Center of Expertise (TVNCOE) or by contacting a Coast Guard District of Area Towing Vessel Coordinator (District 15 Seattle: 206-220-7217; District 17 Juneau: 907‑463‑2849).

On December 9, 2011, Jennifer Carpenter with The American Waterway Operators (AWO) responded to the Coast Guard’s Notice of Proposed Ruling Making (NPRM) setting forth AWO’s comments. “Under the NPRM (Notice of Proposed Rule Making), a company using the Coast Guard option would incur substantial additional costs to meet detailed and costly ‘prescriptive requirements’, for such things as electrical systems and equipment, without the ability to demonstrate compliance with more flexible ‘functional requirements’ as specified in a TSMS. Similarly, a company using the Coast Guard option could incur substantial demurrage costs while waiting for a Coast Guard inspector to approve a vessel repair or for an OCMI to issue a permit to proceed, while a vessel operating under a TSMS could get underway more quickly following the procedures laid out in the company TSMS.”

Significant cost burdens to the tug owner and operator will derive from proposed equipment requirements that will require substantial and costly modification to existing towing vessels with an actual history of safe operation. Compliance with the proposed requirements for redundant, independent means of propulsion, steering, and related controls for towing vessels moving tank barges and proposed requirements for electrical systems and equipment on existing towing vessels will far exceed even the Coast Guard’s high-end estimates of the costs of a TSMS, without an equivalent corresponding safety benefit. The AOW estimates the cost of retrofitting an existing towing vessel to comply with the noted equipment requirements to average $180,000 to $300,000 per vessel before factoring in the significant costs associated with time out of service while the vessel is undergoing modification. Some members estimate the cost will be as much as $1-million per vessel to bring certain vessels into compliance.

The AWO has offered suggestions to reduce the cost of these regulations without detracting from their safety benefits:

The prescriptive equipment requirements be eliminated if they are not justified by a towing vessel casualty history and risk that otherwise would impose severe financial burdens of existing towing vessels.

The proposed requirements in 46 CFR part 143, Subpart D of Part 143 [Requirements For Towing Vessels That Tow Oil or Hazardous Materials in Bulk] requiring towing vessels moving tank barges to be equipped with independent, redundant means of propulsion, steering, and related control; and, the proposed electrical systems requires for the existing towing vessels contained in Subpart C at: § 143.340 [Electrical power sources, generators, and motors], 143.345 [Electrical distribution panels and switchboards], 143.350 [Electrical overcurrent protection other than generators and motors], 143.355 [Electrical grounding and ground detection], and 143.360 [Electrical conductors, connections, and equipment], all should be deleted because they will not lead to an increase in towing vessel safety in any way proportionate to their costs.

Equipment Requirements such as those proposed in Subpart D are not relevant to mishaps caused by human error, such as equipment-related mishaps pertaining to steering failure, typically the result of deficient maintenance practices that failed to provide early warning of a worn-out system. Safety management systems in lieu of equipment requirements proposed in Subpart D are optimally suited to prevent such deficiencies.

Proposed Part 143 Subpart D is dramatically understated by the Coast Guard as impacting a mere 26 towing vessels. In fact, the requirement will require extensive and expensive modifications to nearly every towing vessel moving tank barges in the United States, far exceeding the projected $250 to $20,000 cost per vessel. The costs are project to run upwards of $200,000 for many existing towing vessels, in addition to time out of service. The AWO is urging the Coast Guard to delete proposed electrical system requirements for existing towing vessels at § 143.340, 143.345, 143.350, 143.355 and 143.360. The Coast Guard has the authority under existing regulations to require changes to unsafe electrical installations on towing vessels. It is not necessary to require wholesale changes to electrical system requirements for towing vessels that have operated safely for many years in order to effectively address existing unsafe situations. These proposed requirements require changes which will cost as much as $100,000 per towing vessel, excluding time out of service.

The AWO recommends that proposed § 143.340, 143.345, 143.350, 143.355 and 143.360 be deleted. Proposed § 143.350 (the Electrical Systems, General) sets forth appropriate functional requirements for electrical systems and equipment on existing towing vessels and is consistent with the approach recommended by Towing Safety Advisory Committee (TSAC).

For copies of the Notice Of Proposed Rulemaking (NPRM) or to make comments go to http://www.regulations.gov - enter docket number USCG-2006-24412 in the "Docket ID" box.

John Lenker’s environmental practice is tracking the Inspection of Towing Vessels: New 46 CFR Subchapter M: and the cost of prescriptive requirements, deferred machinery and electrical compliance and deferred redundancy compliance.

Draft 2013 Vessel General Permit (VGP) and Small Vessel General Permit (sVGP)

John E. Lenker — Thu, 15 Dec 2011 13:27:19 -0800

I recently addressed marine industry audiences in the Puget Sound region on the subject of the pending draft sVGP.

The draft VGP currently proposed will replace the current 2008 VGP when it expires December 19, 2013. The draft sVGP, once finalized, will authorize discharges incidental to the normal operation of non-military and non-recreational vessels less than 79’ in length.

Presently, a Congressional moratorium exempts all incidental discharges, with the exception of ballast water from commercial fishing vessels and non-recreational, non-military vessels less than 79’ in length, from having to obtain a Clean Water Act permit until December 18, 2013. The sVGP would provide owners and operators with permit coverage for these vessels after that date.

The 2013 draft VGP will continue to regulate 26 specific discharge categories that were enumerated in the 2008 VGP, and for the very first time authorize the discharge of fish hold effluent. This draft of the VGP now contains numeric ballast water discharge limits for most vessels and more stringent effluent limits for oil to sea interfaces and exhaust gas scrubber wash water.

The EPA is also proposing to improve the efficiency of several VGP administrative requirements, including electronic recording keeping, an annual report in lieu of the one-time report and annual non-compliance report, and also requiring small vessel owners and/or operators to obtain coverage under the sVGP by agreeing to the terms of the Permit Authorization and Record of Inspection form.

The sVGP is organized by discharge management categories to include: fuel management, engine and oil control, solid and liquid maintenance, gray water management, fish hold effluent management, and ballast water management.

All vessels eligible under the sVGP will receive coverage at the time and date of the expiration of the moratorium, December 18, 2013.

As a requirement of a permit, owners and operators must complete the sVGP Permit Authorization and Record of Inspection (PARI) form. Additionally, a permittee must conduct an annual self-inspection and certify having done so each year.

The EPA is accepting comments on the proposed permits for 75 days after publication in the Federal Register (commenting deadline is February 21, 2012). Comments can be submitted:

Online at: http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0141-0001
By email to: OW-docket@epa.gov
By mail to:

Water Docket

U.S. Environmental Protection Agency

Mail Code 2822T

1200 Pennsylvania Avenue N.W.

Washington D.C., 2046

Attn: Document I.D. No. EPA-HQ-OW-2001-0141.

Public meetings will be held on January 11, 2012 in Washington D.C., and January 23, 2012 in Chicago, IL.

For more information, see: http://www.epa.gov/npdes/vessels.

Pebble Mine Setback: Local Initiative Passes to Block Permits for Mine

Jess G. Webster — Tue, 18 Oct 2011 11:25:39 -0800

In a close vote (280 to 246) Lake and Peninsula borough voters have approved an initiative to forbid the issuance of permits for the proposed Pebble Mine in Alaska. The proposed Pebble Mine would be the world’s biggest gold and copper mine, located in the watershed feeding into Lake Iliamna and the waters of Bristol Bay, Alaska, home of one of the world’s largest sustainable salmon fisheries and other important fisheries. The proposed mine has created one of Alaska’s most polarized natural resource battles, pitting potential jobs against protection of one of the state’s most important fisheries and the environment. Proponents of the mine are expected to challenge the initiative in court. For the present, the vote is considered an important victory by fisheries and conservation interests. The Bristol Bay salmon fishery is a natural wonder that provides employment for thousands of people, both within and outside the State of Alaska, and needs to be protected and preserved.

Fifth Circuit Court of Appeals allows incorporation of terms and conditions from party's website into contract for vessel repair under maritime law.

Jess G. Webster — Tue, 23 Aug 2011 10:05:36 -0800

In the recent case of One Beacon Ins. Co. v. Crowley Marine Servs., 2011 U.S. App. LEXIS 15620, the U.S. Fifth Circuit Court of Appeals recognized the incorporation by reference of terms and conditions found on a party’ website that imposed sweeping indemnity obligations upon the other party to the contract.

The case involved a contract for a repair of a barge owned by Crowley Maritime Services, Inc. Fleet owner Crowley issued a number of Repair Service Order (“RSO”) to ship repairer Tubal-Cain. The RSO contained a description of the work, was not signed by either party, contained no pricing terms, and contained following language: THIS RSO IS ISSUED IN ACCORDANCE WITH THE PURCHASE ORDER TERMS & CONDITIONS ON WWW.CROWLEY.COM / DOCUMENTS & FORMS, UNLESS OTHERWISE AGREED TO IN WRITING. The terms and conditions could be found on Crowley’s website, a process requiring four steps, and were displayed in approximately four-point font.

Tubal-Cain proceeded with the work described in the RSO and hired a subcontractor to perform electrical work on the project. An employee of the subcontractor was injured and sued his employer, Tubal-Cain and Crowley for damages.

Crowley made a demand upon Tubal-Cain and its insurers for indemnity, based upon a contractual indemnity obligation contained in the Terms & Conditions posted on Crowley’s website. Crowley alleged that the terms and conditions referred to in its RSO required Tubal-Cain to defend and indemnify Crowley against any claim brought by Tubal-Cain’s employees and contractors, and that the terms and conditions required Tubal-Cain to carry various insurance policies naming Crowley as an additional insured. The district court found in favor of Crowley on its claims against Tubal-Cain for indemnity and that Tubal-Cain was obligated to obtain insurance coverage for Crowley’s benefit.

The Fifth Circuit Court of Appeals agreed and affirmed the district court. Tubal-Cain argued that indemnity terms which purport to indemnify a party for damages caused by its own negligence, must be "specific and conspicuous" to be enforceable under maritime law, but the appeals court confirmed that when a contract expressly incorporates another instrument by reference, showing a clear intent to incorporate the other instrument, the incorporation by reference will be recognized. The court found that the intent to incorporate Crowley’s terms was clear from Crowley’s RSO, Tubal-Cain had adequate and reasonable notice of the incorporation of Crowley’s terms, and the opportunity to review them on Crowley’s website.

The court’s decision is not unusual or surprising, and is consistent with decisions of other courts in non-admiralty contexts, recognizing the applicability of terms and conditions available through the internet so long as the party to be bound has reasonable notice of the terms at issue and manifested assent to such terms.

Maritime law has been liberal in its enforcement of one-sided terms found in ship repair agreements, often described as “red letter clauses,” due to a perceived equality in bargaining power between vessel owners and repairers. The Crowley decision takes that trend one step further, such that vessel owners and repairers must be even more vigilant in reviewing RSOs, RFPs, Work Orders and other documents relating to contractual engagements to avoid incorporation of unwanted terms into their contracts by means of a short, seemingly innocuous, sentence in almost any document relating to the work in question.

The full opinion in One Beacon Ins. Co. v. Crowley Marine Services can be found here.

What Is the Future Role of the Coast Guard's National Suspension & Revocation Center of Expertise?

John E. Lenker — Tue, 19 Jul 2011 12:29:59 -0800

Is the future role of the Coast Guard’s National Suspension & Revocation Center of Expertise to keep a traveling legal staff to prosecute those holding a mariner’s license?

The Coast Guard and U.S. Department of Homeland Security recognize the need for “targeted revitalization of technical competency and expertise within marine safety” in the maritime industry, and assert that the National Centers of Expertise (NCOE) will improve Coast Guard inspector and investigator competencies in the maritime industry, as well as insuring uniform application of regulations policy doctrine and Tactics, Techniques, and Procedures (TTP). The Suspension and Revocation National Center of Expertise (SR NCOE) is located in Martinsburg, West Virginia.

There are more than 200,000 credentialed merchant mariners for which the Coast Guard is charged to ensure their competency and professional conduct, that mariners have not acted beyond the scope of their licensed authority or acted negligent in their responsibilities. The Coast Guard can and does reprimand, following a hearing, licensed mariners to ensure they possess the necessary skill, experience and character to protect the life and safety of those at sea. According to a Defense Media Network posting, more than 600 mariner complaints are looked into annually by Coast Guard Investigating Officers (IOs). The SR NCOE Center is currently staffed by six individuals, one of which is an attorney, to assist the local Officer in Charge, Marine Inspection (OCMI) in presenting the Coast Guard’s case at a hearing on the suspension and revocation of a mariner’s license. The IOs are assisted by both military and civilian employees assigned to SR NCOE.

The SR NCOE and OCMI investigate potential violations of law, negligence, misconduct, unskillfulness, incompetence or misbehavior of persons holding merchant mariner documents, licenses, certificates or creditials issued by the Coast Guard and recommends SR pursuant to 46 USC 77when deemed appropriate. The process begins by the Coast Guard’s issuance of a complaint against the holder of a Coast Guard credential; the Coast Guard submits evidence to support the allegations of its complaint; the respondent/license or credential holder may submit evidence in rebuttal or mitigation to an administrative law judge. The judge renders a decision on the basis of evidence adduced at a hearing and the law, and renders a decision to the respondent. In the case where an appeal is made by either party, notice of appeal is filed in accordance with 33 CFR 20.1001(a). Supplementary information and regulatory information can be found in the Federal Register's article regarding Establishment of Suspension and Revocation of National Center of Expertiseand discussion of the rule setting forth the technical changes to Titles 33 and 46 of CFR in establishing SR NCOE and can be found at 33 CFR 1.01-20 and 46 CFR 1.01-15.

The Coast Guard and the Department assert that in broadening the Coast Guard’s team to handle suspension and revocation cases, this new team approach will not affect the process or procedure in prosecuting a mariner. That remains to be shown from the perspective of the licensed mariner meeting his or her burden of proof and mounting a defense to the charges alleged against his or her license or credential.

SR NCOE Section 1.01-25 has also been updated. 46 CRF 1.01-25(c)(1)(i)now reflects that either party, the Coast Guard or the respondent mariner (license holder), may appeal an Administrative Law Judge’s decision (former paragraph 1.01-25(c)(1)(i) only addressed appeals filed by the respondent license mariner).

Licensed mariners should be generally made aware of the existence and role of the SR NCOE and its support role and expertise provided to the OCMI.

Washington State Boating Under the Influence ("BUI") Laws

Jess G. Webster — Fri, 15 Jul 2011 09:27:05 -0800

Washington’s boating under the influence (“BUI”) law is governed by RCW 79A.60.040, which has many similarities and differences to Washington’s driving under the influence law ("DUI"). Because taking the boat out and having drinks on the water has become a way of relaxing for many, it is wise to be aware of the laws governing drinking on the water:

Although drinking alcohol is not illegal on the boat, the operator is required to be under the legal limit. The laws governing boating under the influence law have many similarities to the current DUI laws in Washington, but it also has some distinctly different aspects. RCW 79A.60.040. Somewhat mirroring the DUI laws RCW 79.60.040 reads:

(1) It shall be unlawful for any person to operate a vessel in a reckless manner.

(2) It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:

     (a) The person has 0.08 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506; or

     (b) The person has 0.08 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506; or

     (c) The person is under the influence of or affected by intoxicating liquor or any drug; or

     (d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

     The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. A person cited under this subsection may upon request be given a breath test for breath alcohol or may request to have a blood sample taken for blood alcohol analysis. An arresting officer shall administer field sobriety tests when circumstances permit.

(3) A violation of this section is a misdemeanor, punishable as provided under RCW 9.92.030. In addition, the court may order the defendant to pay restitution for any damages or injuries resulting from the offense.

To What Vessels Does the Law Apply?

Both the state law and federal BUI regulations apply to all vessels, regardless of how small or however powered. In other words, the laws apply even to canoes, row boats and small inflatable boats.

What is the Penalty for a BUI?

A major distinction from DUI law is that the violation of the BUI law is a misdemeanor in the State of Washington. This means that the maximum time in jail is 90 days and the maximum fine is $1000 dollars. RCW 9.92.030. However, it should be noted that if the arrest is made by the United States Coast Guard a larger fine can be imposed for violations depending on the circumstances. US Coast Guard website. Additionally, a vessel operator under the influence of drugs or alcohol that causes death or serious injury can face a Class B and Class A felony. RCW 79A.60.050 and RCW 79A.60.060.

Will a BUI Affect a Drivers License?

Another notable difference between a DUI and a BUI is that there are no driver’s license sanctions for a conviction of a BUI. With the phasing in of mandatory vessel operators permits, boaters could potentially face losing their boater permit, but this has not been implemented as a penalty yet. This does not mean that it should be taken lightly by any means; it is still a criminal conviction and Law Enforcement has made recent efforts to aggressively seek out intoxicated boat operators.

Are Alcohol Tests Mandatory?

Breath and blood alcohol tests may be administered by officers, but unlike the DUI counterpart, there are no further legal penalties for refusing to take them. Due to the implied consent laws governing motor vehicle DUI’s, refusal to take the tests in a DUI situation results in automatic penalties (i.e. loss of drivers license for a year, increased mandatory jail time). For DUI’s, Law Enforcement officers are required to inform individuals of the consequences of refusing the alcohol tests. A refusal at this point results in more severe penalties and the refusal can be used against the individual in a criminal proceeding. Washington State has not implemented similar implied consent laws concerning BUI. This means that there is no additional legal consequence for refusal to take the alcohol tests, and a refusal cannot be used as evidence against the individual in a criminal proceeding.

However, if the BUI is enforced through the Coast Guard, a refusal can be used in evidence in an administrative proceeding, and the individual refusing the test will be presumed to be under the influence, effectively shifting the burden of proving innocence onto the individual. Further, a refusal to submit to testing can also be used as a factor for increasing the potential fine for the incident.

Do you have to take Field Sobriety Tests?

Additionally, field sobriety tests may be administered by officers “when the circumstances permit” (RCW 79A.60.040). Field sobriety tests administered to boaters face many difficulties and are therefore seldom used by law enforcement. The fact that a boat operator has been on the water and, most likely, out in the sun for a substantial period, greatly affects balance and coordination. The combination creates a situation where field sobriety tests could produce inconsistent results. These results are likely to be inconclusive in proving that a boat operator was legally unable to operate the vessel.

Taking Alcohol Tests, Drug Tests or Field Sobriety Tests – Practical Consequences:

Refusing to take alcohol or drug tests, or refusing to perform field sobriety tests may well result in unpleasant choices and consequences for the boater suspected of the BUI and his or her guests. If investigating law enforcement officers believe reasonable cause to exist to stop a boater for BUI they generally also have the authority to remove the boater and the boat from navigable waters. Coast Guard officers are provided such authority by federal regulations and the Coast Guard generally works in close cooperation with local law enforcement in BUI enforcement initiatives, especially for public events that attract boaters. As such, it is not uncommon for law enforcement officers to advise boaters that if the boater refuses to submit to the requested testing they will be arrested, removed from the boat on suspicion of BUI, and the boat will be detained or impounded. Note that if the boater takes the requested tests and any such tests are positive, the boater will most likely be arrested and charged with BUI, and the evidence against the boater will be much stronger. As to the disposition of the boat following arrest of its operator, if another person on board can demonstrate that he or she is not under the influence and otherwise qualified to operate the boat, that person may be put in charge of the operation of the boat rather than detaining or impounding the boat.

Even though the penalties for a BUI are not as severe as for DUI, being suspected of, or charged with, a BUI can certainly ruin a good day on the water, and lead to a lot of complication, trouble, substantial expense, fines and potential jail time. . While arresting officers cite a multitude of circumstances to support their assertions of reasonable cause for belief that a boat operator was under the influence, the most common reasons are probably excessive speed, other unsafe boat handling practices, and observing the operator drinking while operating the boat. Be safe on the water, observe no wake zones, and avoid a potential BUI by always having a designated operator, who does not consume alcohol or drugs, operate the boat at all times.

This information is published for the general knowledge of the public and by no means should it be considered legal advice provided by Mikkelborg, Broz, Wells and Fryer, PLLC. Note that different statutes and regulations may apply to commercial vessels, vessels subject to inspection, vessels involved in a serious marine incident, and to personnel operating vessels under the authority of a license issued by the U.S. Coast Guard.

Buyer Beware in Buying Vessels? Maybe Not if Buying Stock!

Jess G. Webster — Thu, 14 Jul 2011 12:09:12 -0800

In an opinion issued by the U.S. Court of Appeals for the Eleventh Circuit on July 8, 2011, in the case of Quail Cruises Ship Management Ltd. V. Agencia de Viagens CVC Tur Limtada, et.al., the court determined that a purchaser of stock of a foreign company that owned a commercial vessel could maintain claims in U.S. courts for securities fraud, maritime torts of fraud in the inducement, recklessness and negligence/negligent representation and common law claims for civil conspiracy to commit fraud in the inducement and breach of fiduciary duty.

The case involved the sale of the M/V PACIFIC, better known as the Love Boat from television show of the 70s and 80s. According to the plaintiff, the vessel’s owners and managers deferred much needed maintenance on the vessel, influenced Lloyd’s Register North America, Inc. to provide favorable inspections, and misrepresented the condition of the vessel, in reliance upon which the plaintiff was induced to purchase the shares of the foreign company that owned the vessel. When the plaintiff later learned of the actual condition of the vessel, the law suit, based in large part on alleged securities fraud, followed.

The opinion of the appellate court focused primarily on the jurisdictional basis for the maintenance of the lawsuit, i.e. whether there was a sale of securities that took place in the U.S. Nevertheless, the case also illustrates the increased liability exposure of those that choose to sell the ownership of the company that owns a vessel, rather than selling the vessel as a separate asset. Normally, in an asset sale of a vessel, the principle of caveat emptor, or “buyer beware” applies. When a seller sells stock or other securities, state and federal securities laws apply to create far greater disclosure requirements on sellers. While tax effects generally drive the decision of whether to sell stock or assets, the increased liability exposure in selling stock is a factor to be considered.

Clean Water Jobs Act of 2011

John E. Lenker — Tue, 12 Jul 2011 14:36:42 -0800

Washington State Senate Bill 5604 seeks to create clean water jobs through storm water pollution funding by adding a new chapter to Title 90 RCW, known as the "Clean Water Jobs Act of f2011."

New Section 2 describes the Legislature’s finding that activities that address storm water contamination generate significant job growth, particularly in the construction industry. The Legislature recognizes that future expenditures for storm water remediation in the Puget Sound region will require billions of dollars in new investments, more than $250‑million will be needed to be spent by cities, counties, ports and the State’s Department of Transportation (“DOT”) each year. The source of pollution is not a single physical point, but occurs wherever products containing these substances are purchased, consumed or used, so called non-point sources. The Legislature has concluded that surface runoff of fertilizers, pesticides, and herbicides into water bodies damage the natural water ecosystems and create pollution. The Legislature recognizes that control of pollutants and storm water runoff has occcured through the National Pollutant Discharge and Elimination System (“NPDES”) Phases I and II, including municipal storm water permits. Impacts from these sources can be prevented or controlled through retrofit projects for existing infrastructure; however, current resources being devoted to offset direct burdens of waterways by pollutants are insufficent to meet existing needs and the funding burden is disproportionally born by fees levyed on individual developers and property owners. As a result, the legistature has determined that imposing a fee on the first possession of toxic storm water pollutants that contribute to a non-point storm water contamination is appropriate.

New Section 4 proposes to establish a storm water pollution account created in the state treasury from all receipts from storm water pollution fees.

New Section 5 imposes, beginning July 1, 2011, a storm water pollution fee on first possession of the following substances: Petroleum products, pesticides, herbicides, and fertilizers, a fee equal to 1% of the wholesale value of the toxic storm water pollutant. The fee will be collected by the Department of Ecology (“DOE”) quarterly, and the DOE may delete or add toxic storm water pollutants to the list. The storm water pollution fee charge would not apply to possession of fuel, any successive possession of a toxic storm water pollutant for which a fee has previously been paid or where a product is used for a personal or domestic purpose or in a dwelling.

New Section 7 provides a credit against the storm water pollution fee charged for pollutants that are subsequently exported for sale outside the state or for fees paid pursuant to this chapter on the possession of fuel from the state.

New Section 4 sets forth how the DOE must distribute the monies annually from the storm water pollution account: 1) $75,000 to be provided to each local government to address contamination of storm water by toxic storm water pollutants; 2) $11‑million to be provided to the DOT for transportation infrastructure, however these monies are not to be used for contruction of storm water facilities associated with new road construction or new road alignment construction; 3) $3‑million to be provided as grants to non-profit organizations to develop storm water prevention and treatment technologies and assist businesses and governmental entities in testing, monitoring, adopting and implementing new practices and technologies; 4) Forty-five percent of the monies remaining after the above allocations to be distributed annually by the department through grants to local governments covered by the NPDES municipal Phase I or Phase II permits to mitigate or prevent contamination from toxic storm water pollutants (local government must provide 50% of the project matching fund); 5) Forty-five percent of the monies remaining after allocation of the above to be allocated annually by the DOE through grants to local governments for retrofit projects to address contamination of storm water by toxic storm water pollutants that directly reduce emissions that result in air deposition of toxins from stom water pollutants. Within this 45% allocation of monies for capital improvement projects greater than $1‑million, at least 15% of the labor hours are to be performed by apprentices; 6) The final 10% of monies remaining after distribution of the above are to be allocated to the highest priority projects based upon ecological and water quality benefits. The stake holders and Department of Ecology are required to develop criteria for administering the program and ranking projects for funding based on water quality benefits and to assure that grants are awarded consistent with the prioritization of the 2020 Action Agenda.

Washington’s agri businesses are potentially facing greater regulation of surface water runoff containing fertilizers, pesticides and herbicides if this Bill is enacted into law to help fund the cost of mitigating the resulting contamination.

Washington's Legislative Response to the "Deepwater Horizon" Wellhead Blowout

John E. Lenker — Mon, 11 Jul 2011 19:16:15 -0800

The Washington State House of Representatives is considering Engrossed Second Substitute House Bill 1186 as a result of the "DEEPWATER HORIZON" wellhead blowout, explosion, and oil spill in the Gulf of Mexico. The Bill is in response to any potential threat of a major spill to Washington's environment and lessons learned from the spill in the Gulf of Mexico. House Bill 1186 undertakes to amend RCW 88.46.060, 88.46.100, 88.46.090, 90.48.366, and 90.56.370, reenacting and amending our 46.10.010, adding new sections to Chapter 88.46 RCW.

Of particular interest is the addition of “vessels of opportunity response system” as defined in Section 2(27), a fleet of non-dedicated commercial vessels and crew under contract with and equipped by contingency plan holders to assist with oil spill response activities; Section 2(28) defines “regional vessels of opportunity response group”; Section 2(29) “Volunteer coordination system”; and Section 2(30) “Umbrella plan holder”.

New Section 3 requires the owner or operator of a tank vessel to establish or fund a vessel of opportunity response system with a sufficient number of participating vessels, at least six capable participating vessels are required to have best achievable technology for booming storage and recovery of oil with response equipment readily available to the individual vessels. The contingency plans for a tank vessel operating in Washington waters must provide for the organization and contracting of a vessel of opportunity response system to be fulfilled by one or more private organizations, non-profit corporations providing umbrella coverage under contract to single or multiple tank vessels. Each original vessel of opportunity response group must undergo a minimum of two drills a year with a planning goal of deploying six capable vessels at any one time.

New Section 4 empowers the Department of Ecology (“DOE”) to establish a volunteer coordination system as part Washington’s overall oil spill response strategy; empowering local governments to receive, screen and register volunteers who will be exempt from liability, except in the instance of gross negligence or willful and wanton misconduct.

New Section 5 sets forth provisions for rapid access to oil spill response and oil spill response equipment located within the State, the capacity for storage and proper disposal of oils.

New Section 6 sets out the department’s responsibility for ordering joint large-scale multiple plan equipment deployment drills of tank vessels every three years.

Old Section 7 has a new provision at (6)(b), whereby the department must notify the plan holder within 65 days of an initial or amended plan submittal to the department, as to whether the plan is disapproved, approved or conditionally approved.

New Section 8 requires that both tank vessels and covered vessels that are not tank vessels must, in addition to satisfying all other requirements of this chapter, specify the maximum worst case discharge volume from covered vessels that are not tank vessels, pursuant to the umbrella plan holders’ contingency plan and the maximum worst case discharge volume from tank vessels pursuant to the umbrella plan holders contingency plan.

Old Section 9 adds, in addition to notifications by the owner or operator of a covered vessel, that in addition to any notifications that the owner or operator of a covered vessel must provide the Coast Guard regarding a vessel emergency, the owner or operator of a covered vessel must notify the State of any vessel emergency that results in the discharge or substantial threat of discharge of oil to State waters, or that may affect the natural resources of the State.

Old Section 10 is revised to authorize the director to assess a civil penalty of $300,000 instead of $100,000 against the owner or operator of a vessel in violation of subsection (1) and (2) of Section 10.

Section 11 has amended the compensation schedule for the discharge of oil in violation of this chapter; for spills totaling 1,000 gallons or more in any one event, no less than $3 instead of $1 per gallon of oil spilled, and no greater than $300 as opposed to $100 per gallon of oil spilled; and for spills totaling less than 1,000 gallons in any one event, no less than $1 per gallon of oil spilled and no greater than $100 per gallon of oil spilled.

Old Section 12 has been amended to include the assessment of damages for which responsible parties are liable under this section to include loss of income, revenue, the means of producing income or revenue, or an economic benefit resulting from an injury or loss of real or personal property or natural resources. Recoverable costs include the costs to collect, investigate, perform surveillance over, remove, contain, treat, or disburse oil discharged into waters of the State.

New Section 13 requires the director of the DOE to formally request that the federal government contribute to establishment of regional oil spill response equipment caches of equipment.

New Section 15 requires all affected vessels to have new contingency plans approved by the DOE or updates to existing contingency plans, in compliance with Sections 3 and 5(3) by January 1, 2013, whereas all other Sections of the proposed Act must be complied with by October 1, 2011.

I believe Substitute House Bill 1186 warrants monitoring in light of some of the changes identified above and the costs to tank and covered vessel operators and owners as well as the potential opportunities opened up to vessel owners and operators to participate in the vessels of opportunity response system.

Notice of Proposed Rule on Inspection of Towing Vessels

John E. Lenker — Thu, 07 Jul 2011 10:13:06 -0800

The Notice of Proposed Rule on Inspection of Towing Vessels should be published later in July 2011.

The Coast Guard Authorization Act of 2010 requires that a proposed rule be issued within one year of enactment to promote safer work practices and reduce casualties on towing vessels. A new subchapter dedicated to towing vessels is added covering vessel equipment, systems, operational standards, and inspection requirements. The Coast Guard is compelled to develop regulations appropriate to towing vessels and the industry. This will increase costs of safety management systems, standards for construction, operation, vessel systems, safety equipment, and recordkeeping for existing and new vessels. The Coast Guard is in the process of developing cost estimates for the proposed rule.

Seaman's Burden of Proving Causation Remains "Featherweight"

Jess G. Webster — Thu, 23 Jun 2011 12:09:21 -0800

The U.S. Supreme Court issued its decision today in the matter of CSX v. McBride, and affirmed by a 5 to 4 majority that the longstanding rule, recognized by most jurisdictions, of minimal causation personal injuries under under the Jones Act, remains unchanged. The seaman’s burden of proving causation is satisfied if the employer’s negligence played a part – no matter how small – in bringing about the injury. The case involved a claim of a railroad worker under the Federal Employer’s Liability Act (FELA), the liability standards of which are adopted under the Jones Act. Accordingly, the same rule of causation continues to apply to a seaman’s claims against an employer under the Jones Act.

Public Access Issues Under The Shoreline Management Act

John E. Lenker — Fri, 29 Apr 2011 09:59:11 -0800

I attended a KCBA Environmental and Land Use Section’s April Brown Bag CLE earlier this week. The topic was “The Shoreline Management Act and Public Access.” There were some interesting issues presented on public access required under The Shoreline Management Act.

As a shoreline property owner, what are obligations do you have to provide public access to or across your property, and what limits are placed on government to command public access to or across your property?

There are both statutory and constitutional limits to mandating public access to private property. However, government must also assure that private property interests are protected, and the property owner is not required to prove the illegality of government requiring dedication of private property for public access. The government must prove the nexus of a reasonable relationship between the condition imposed and the burdens created by obtaining the access sought. The government must also demonstrate the proportionality between its exactions demanded from the property owner, the resulting impact created and condition imposed and the need for some reasonable relationship to a substantial governmental purpose. Government must show that the condition imposed on property rights is reasonably necessary under the circumstances.

The U.S. Supreme Court has stated that an essential element of individual property is the legal right to exclude others from enjoying it. Nollan v. Cal. Coastal Com, 483 U.S. 825 (U.S. 1987). Public guidelines encourage public access where at all feasible, “recognizing and protecting private property rights consistent with the public interest….” RCW 90.58.020. Thus, a property owner is not to be left in the position of having to challenge a government master plan requirement to provide public access.

Nevertheless, one has to expect that there will be ongoing issues between shoreline property owners and governmental agencies over public access issues under the Act.

Are BMP's no longer based on sound engineering or scientific principles?

John E. Lenker — Fri, 15 Apr 2011 11:16:09 -0800

According to Washington state officials, storm water pollution is the biggest health threat to the Puget Sound region.

House Bill 1806 was an attempt to address the issue by reaching an agreement on the appropriate use of storm water benchmarks in the Industrial Stormwater General Permit (ISGP) and the Construction Stormwater General Permit (CSGP), but the legislation did not pass prior to its cutoff date. See, proposed RCW 90.48.555 – Stormwater Permit Benchmarks Amendment: “(4) In making a determination under subsection (3)(d) of this section, the department shall use procedures that account for: (a) Existing controls on point and nonpoint sources of pollution; (b) The variability of the pollutant or pollutant parameter in the storm water discharge; and (c) As appropriate, the dilution of the storm water in the receiving waters."

Benchmarks are numeric or narrative values within the ISGP and CSGP, they are not numeric effluent limits which are required for impaired or “303(d) listed water bodies”. They simply serve as indicators of the performance of best management practices (BMPs) and other adaptive management practices. The Washington Pollution Control Hearings Board (PCHB) has ruled that the Washington Department of Ecology must require strict compliance with water quality based benchmarks with no presumption of compliance based on implementing Ecology approved BMPs.

This decision begs the query, are BMP’s no longer based on sound engineering or scientific principles?

Japan Earthquake the Costliest Ever?

Tom Pedreira — Thu, 24 Mar 2011 06:45:12 -0800

Reports are that losses from the earthquake in Japan could top $300 Billion. (Japan disaster likely to be world's costliest, Associated Press, Yahoo News, March 24, 2011.) The maritime industry in Japan will also be seriously affected. Shipping will be harmed, as will imports and exports. (Tsunami and Earthquake in Japan also affects shipping, Infomarine On-Line, March 14, 2011.)

Dilapidated Vessels on the Columbia

Tom Pedreira — Wed, 23 Mar 2011 08:54:40 -0800

The Davy Crockett is just one of many dilapidated vessels on the Columbia River. Crews are continuing to work on the cracked barge that has been abandoned about 15 miles upstream from Vancouver. The Davey Crockett was in a 'V' shape with half the hull sticking out of the water. But crews Thursday started filling the stern with water so the whole hull would rest on the river bed. The next step is for divers to be sent down to see how much more oil and PCBs remain on board. (Kristian Foden-Vencil, Davy Crockett One Of Many Dilapidated Vessels On The Columbia, OPB News, February 3, 2011.)

A photo of the vessel and reprint of the article on the bluefish.org website provides a greater appreciation of the magnitude of the project and the potential harm to the river and salmon runs.

Seattle and New York City Waterfronts: A Common Destiny?

Tom Pedreira — Tue, 22 Mar 2011 10:15:14 -0800

The Associated Press reported earlier this month that New York City's first waterfront plan in two decades envisions a metropolis where residents flock to the waterways for recreation. It would cost an estimated $3.2 billion. (The Seattle Times, NYC plans $3B transformation of waterfront, March 14, 2011.)

One of the first things that Seattle Mayor Mike McGinn wanted after being elected to office was an additional $241 million in taxes to replace Seattle’s waterfront seawall. (kirotv.com , McGinn Wants Levy for Urgent Seawall Replacement, January 14, 2010.) Yet he then vetoed the waterfront tunnel agreement that was overwhelmingly approved by the City Council. (KOMOnews.com, Mayor McGinn vetoes waterfront tunnel project, February 17, 2011.)

It is hard to say where Seattle will end up on these waterfront issues, but watching what New York City ends up doing may provide some helpful insight.

Reform of the Common Fisheries Practice for the European Union

Tom Pedreira — Mon, 21 Mar 2011 11:19:21 -0800

As reported by Fishnewseu.com, the European Commissioner for Maritime Affairs and Fisheries, Maria Damanaki, delivered a speech last week in Berlin on reforming the Common Fisheries Policy.

The Commissioner said that she is determined to make the policy greener, simpler and leaner, more modern and consistent with the international standards. (Maria Damanaki expresses support for decentralised decision making, fishnewseu.com, March 18, 2011.)

She further said that the European Commission can no longer afford to legislate on every single technical detail and that their policies on fisheries have become too complicated, too detailed and too distant from the final users. What the EU should do is lay down the main objectives, fix the overall standards and prescribe the general principles. (Id.)

The Commissioner further noted that they have to switch to a sustainable exploitation of the seas and to an ecosystem-based approach to fishing. (Id.)

The speech highlights that a big piece of global fishing industry is focused on simplifying regulations while at the same time pursuing sustainable practices. While lofty goals, they may be ones that are inherently be at odds with each other since sustainability practices inevitably tend to lead to more regulation.

Oregon Legislative Bill Targets Pacifc Seafood Group

Tom Pedreira — Tue, 15 Mar 2011 15:56:03 -0800

According to The Register-Guard, Senate Bill 668 was introduced in the Oregon State Legislature with an eye directed toward Clackamas-based Pacific Seafood Group, which it was reported has become the nation’s largest seafood processor in recent years. The bill would limit the fishing permits that could be issued to any one company. (Bill Targets Powerful Seafood Processor, The Register-Guard, March 15, 2011.)

The company’s lawyer said at a Senate committee hearing Monday that the bill unfairly targets a successful, family-owned Oregon company, one that has helped fishermen by developing new markets. But some fishermen charge that the company has created an illegal monopoly, holding down prices for Oregon’s fishing fleet. However, testimony at the hearing on the matter was that company owns only 21 of the 2,200 available fishing permits in various industries. (Id.)

If true, enacting such legislation would seem inappropriate and could set a dangerous precedent. Were there a strong argument that an illegal monopoly existed, there should also be other legal remedies available, including a government enforcement action or a private antitrust suit. And The Register-Herald reports that there is indeed already a class action antitrust lawsuit filed against the company in Medford, Oregon. (Id.)

California Harbor Damage from Tsunami Estimated at $50 Million

Tom Pedreira — Mon, 14 Mar 2011 07:48:25 -0800

Inland News Today reports that damage from the tsunami caused by the earthquake in Japan could exceed $50 million. (Inland News Today, March 13, 2010.) As reported in yesterday's post, most of the damage has been in Crescent City and Santa Cruz.

Damage to ocean vessels has also been significant along the California coast line. More than 100 boats are estimated to have capsized in Santa Cruz. Boats were also damaged or capsized in Santa Catalina and San Diego. (Id.)

West Coast Harbors Severely Damaged by Tsunami

Tom Pedreira — Sun, 13 Mar 2011 06:32:08 -0800

The rising death toll and the destruction caused by the earthquake and tsunami in Japan last week are beyond comprehension. It is also hard to fathom how the tsunami caused so much damage to several harbors along the California coast line many thousands of miles away from the epicenter.

As reported today in the San Francisco Chronicle, wave damaged the Santa Cruz harbor, causing an estimated $17 million in damage. However, the damage was most pronounced in Crescent City, which is California's most active commercial fishing port north of Monterey. (Another Tsunami Jars Crescent City's Psyche, Economy, San Francisco Chronicle, March 13, 2011.)

At least 17 boats sank as a result of the tsunami, the Coast Guard reported Saturday, and nearly all of the harbor's floating docks were destroyed. A film of gasoline covered the water among the boats that remained in the harbor, many of them visibly damaged. Damage totals have not yet been assessed. (Id.)