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Thursday, July 19, 2018

WASHINGTON STATE ATTEMPTS ‘VOLUNTARY’ CONTINUATION OF OUTLAWED TANKER INSPECTION AND REGULATION PROGRAMME

INTERTANKO’s members are beginning to receive notices from the State of Washington soliciting participation in a voluntary version of the tanker regulation programme that was overturned by the Supreme Court of the United States earlier this year.

The decision on whether to participate in such a programme rests with individual member companies and, of course, may vary depending on each owner’s assessment of his company’s relationships with regulators and customers in the State of Washington.  However, the only factors that would dictate agreement to participate are responses to local political pressures that appear at this stage to be driven by State of Washington efforts to salvage some degree of activity in the realm of tank vessel inspection and regulation. We also anticipate that participation in the voluntary programme may be initially tempting to a limited number of companies that expect some sort of “public relations” or commercial dividend to accrue from commendation by the State.  It is INTERTANKO’s hope that safety and legal considerations will ultimately prevail.

It is INTERTANKO’s assessment:

1)     that the safety and environmental standards of the State’s voluntary BAP (Best Achievable Protection) regulations add nothing to vessel safety or marine environmental protection beyond the benefits provided by strict compliance with U.S. federal, international, and prevailing industry standards;

2)     that the State, by attempting to persuade vessel owners to continue compliance with a regime that has been largely found illegal by the Supreme Court of the United States, is attempting to do indirectly what federal law of the United States forbids through direct State action;

3)     that the State of Washington appears to be particularly interested in maintaining a right or customary practice of engaging in vessel inspections of tankers in interstate and international commerce, a right that, by INTERTANKO’s analysis,  does not exist; and, 

4)     that compliance with the State’s BAP standards, even on a voluntary basis, will be a matter of administrative complexity and not insubstantial expense.                                                                                                 

INTERTANKO’s attorneys in the United States are reviewing the voluntary programme and its implications for operators to the State of Washington.  In addition to the points raised above, they additionally caution on two further concerns.  First, there is concern that efforts to comply with a “voluntary” programme that does not have the force of law can create confusion in post-incident litigation over the proper standard of care and performance.  This is particularly true if there is found to be a deficiency in meeting the so-called voluntary standards, once commitment to those standards has been officially recorded by the State.  The second area of concern relates to INTERTANKO’s long-standing position concerning the use of information generated by a tanker companies in post-incident civil or criminal litigation.  Washington State BAP prevention planning requirements, if followed meticulously, require submission of extensive data on internal operations of a company both inside Washington State waters and in the general fleet operations of a tanker company.  This type of information could, in some circumstances, be useful to adverse litigants.  If this sort of information is generated “voluntarily,” efforts by counsel to restrict its use or to assert privileges relating to its disclosure in civil and criminal litigation will likely be undermined.

We realise that information circulated by the State seeks to entice enrollment in the voluntary programme by reference to public commendations of those who enroll and reference to possible favourable use of a company’s status as a participant in commercial decisions by charterers and oil companies.  Again, INTERTANKO urges each member to undertake its own assessment of whether these representations are likely to have any positive real-world impact.  Our present view is that the benefits of tanker owners submitting to such a plan are either illusory or abstract while the legal and practical damage to vessel safety, marine environmental protection, and the progress made through U.S. federal and international regulations is immediate and palpable. 

We project that responsible tanker operators are unlikely to encourage the State in its continuing fascination with these unilateral departures from effective safety regimes. The principle clearly established by INTERTANKO at the Supreme Court is that the State of Washington may not invade subject matters relating to tank vessel design, construction, alteration, repair, maintenance, equipment, operations, personnel qualifications and manning.  For the State to attempt to continue its involvement in these areas through a programme that it describes as voluntary does not lessen the legal affront the State of Washington has perpetrated and reflects a marked disrespect for the teachings of the Supreme Court.  INTERTANKO will encourage the State to find more effective environmental protection initiatives into which it can channel its energies. We would also like to point out that Washington State when introducing this new initiative, as when they initially introduced the BAP standards, did not consult with the affected industry.

We have asked Jonathan Benner to submit a detailed legal analysis by 3 August 2000 for review by members who wish to pursue this matter in greater depth.  For further details, mailto:LegalandDocumentary@intertanko.com