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Saturday, September 22, 2018

A MAJOR BATTLE FOR THE INTERNATIONAL MARITIME SAFETY CONVENTIONS HAS BEEN WON

INTERTANKO members trading to the State of Washington in the United States are advised of the following:

 

1/ A unanimous decision of the Supreme Court of the United States issued on 6 March 2000 found unlawful the following four regulations posted in the Washington Administration Code ("WAC"): Event Reporting (WAC 317-21-130).  Requires operators to report all events such as collisions, allisions and near-miss incidents for the five years preceding filing of a prevention plan, and all events that occur thereafter for tankers that operate in Puget Sound.

Operating Procedures, Watch Practices (WAC-217-21-200).  Requires tankers to employ specific watch and lookout practices while navigating and when at anchor, and requires a bridge resource management system that is the 'standard practice throughout the owner's or operator's fleet,' and which organizes responsibilities and coordinates communication between members of the bridge.  (N.B.  The State requirement governing bridge manning in restricted visibility remains in force.)

Personnel Policies, Training (WAC 317-21-230).  Requires operators to provide a comprehensive training program for personnel that goes beyond that necessary to obtain a license or merchant marine document, and which includes instructions on a number of specific procedures.

Personnel Policies, Language (WAC-317-21-250).  Requires all licensed deck officers and the vessel master to be proficient English and to speak a language understood by subordinate officers and unlicensed crew. Also requires all written instruction to be printed in a language understood by the licensed officers and unlicensed crew.

All obligation of compliance with these four regulations is now terminated.  INTERTANKO members should feel free to cease those procedures and policies that were intended to comply with these regulations.  This advice extends to the filing and submission of compliance plans that relate to these four sections of the Administrative Code.

The disposition of several remaining regulations was transferred (remanded) to lower federal courts.  The following eleven regulations remain temporarily in effect:

Operating Procedures, Navigation (WAC-317-21-205).  Requires tankers in navigation in state waters to records positions every fifteen minutes, to write a comprehensive voyage plan before entering state waters, and to make frequent compass checks while under way.

Operating Procedures, Engineering (WAC-317-21-210).  Requires tankers in state waters to follow specified engineering and monitoring practices.

Operating Procedures, Prearrival Tests and Inspections (WAC-317-215). Requires tankers to undergo a number of tests and inspections of engineering, navigation and propulsion systems twelve hours or less before entering or getting underway in state waters.

Operating Procedures, Emergency Procedures (WAC-317-21-220).  Requires tanker masters to post written crew assignments and procedures for a number of shipboard emergencies.

Operating Procedures, Events (WAC-317-21-225).  Requires that when an event transpires in state waters, such as a collision, allision or near miss incident, the operator is prohibited from erasing, discarding or altering the position plotting records and comprehensive written voyage plan. 

Personnel Polices, Illicit Drugs and Alcohol Use (WAC 317-21-235). Requires drug and alcohol testing and reporting.

Personnel Policies, Personnel Evaluation (WAC 317-21-240).  Requires operators to monitor the fitness for duty of crew members, and requires operators to at least annually provide a job performance and safety evaluation for all crew members on vessels covered by a prevention plan who serve for more than six months in a year.

Personnel Policies, Work Hours (WAC-317-21-245).  Sets limitations on the number of hours crew members may work.

Personnel Policies, Record Keeping (WAC-317-21-255).  Requires operators to maintain training records for crew members assigned to vessels covered by a prevention plan.

Management (WAC-317-21-260).  Requires operators to implement management practices that demonstrate active monitoring of vessel operations and maintenance, personnel training, development, and fitness, and technological improvements in navigation.

Advance Notice of Entry and Safety Reports (WAC-317-21-540).  Requires at least twenty-four hours notice prior to entry of a tanker into state waters, and requires that the notice report any conditions that pose a hazard to the vessel or the marine environment.  148 F.3d, at 1053 (footnote omitted).

INTERTANKO and/or the federal government of the United States will move to stay the effectiveness of these rules as soon as internal court procedures have assured us that the proper court has taken jurisdiction of the matter. Pending advice to you of our having secured a stay of these provisions, we recommend continued compliance.  We will also suggest to the State of Washington that they terminate voluntarily the regulations prior to our being forced to obtain a stay.  However, until you have received clear advice that the provisions have been either stayed, suspended or removed, we counsel continued compliance with these provisions. We will keep members of INTERTANKO advised through the issuance of circular letters.

Questions about this case may be directed to:

Mr. Dagfinn Lunde at +47 22122650 or e-mail dagfinn.lunde@intertanko.com in Oslo or Svein Ringbakken +1 (202) 659 6631 LegalandDocumentary@intertanko.com and Jonathan Benner + 1 (202) 659 6656 cjb@escm.com in Washington DC. Also visit the INTERTANKO web site at for a copy of our Press Release dated 7 March at www.intertanko.com Further details of the Supreme Court’s ruling can be found on: http://supct.law.cornell.edu/supct/html/98-1701.ZS.html