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Edmund Fitzgerald: Investigating Marine Casualties

Today marks the 40th anniversary of the sinking of the M/V Edmund Fitzgerald on Lake Superior in 1975.  It sank in rough weather, taking with it the lives of 29 officers and crew. Commemorative events are outlined here.  

With this anniversary and with the sinking of the M/V El Faro last month, it seemed timely to outline the marine casualty investigation roles of the U.S. Coast Guard and the National Transportation Safety Board.  The agencies have overlapping authorities to investigate marine casualties and they have entered a Memorandum of Understanding regarding their independent roles in a marine casualty.  

Typically, the U.S. Coast Guard investigates all marine casualties but some investigations trigger NTSB involvement.  Under 49 U.S.C. 1131, the NTSB has authority to investigate:

a major marine casualty (except a casualty involving only public vessels) occurring on or under the navigable waters, internal waters, or the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988, or involving a vessel of the United States (as defined in section 2101 (46)  [1] of title 46), under regulations prescribed jointly by the Board and the head of the department in which the Coast Guard is operating.

"Major marine casualties" are defined by regulation (49 C.F.R. 850.5) and the current regulation states:

(e) Major marine casualty means a casualty involving a vessel, other than a public vessel, that results in—(1) The loss of six or more lives;(2) The loss of a mechanically propelled vessel of 100 or more gross tons;(3) Property damage initially estimated as $500,000 or more; or(4) Serious threat, as determined by the Commandant and concurred in by the Chairman, to life, property, or the environment by hazardous materials.

The NTSB has appellate review over decisions of the U.S. Coast Guard with regard to merchant marine licensing which can lead to unusual court decisions like, Collins v. National Transportation Safety Board.  Collins is Admiral Thomas Collins, then Commandant of the U.S. Coast Guard.

In Collins, the D.C. Circuit Court of Appeals reviewed an administrative appeal from a proceeding before a Coast Guard Administrative Law Judge.  The ALJ below found that a licensed mariner committed misconduct leading to a collision in Miami Harbor.  The ALJ suspended the mariner's license for five months.  The mariner appealed to the Commandant of the U.S. Coast Guard who affirmed the decision.  The mariner then appealed to the NTSB under 49 U.S.C. 1133 which reversed the Commandant's decision.  The Coast Guard appealed to the D.C. Circuit Court of Appeals.

As is common with judicial review of administrative decisions, the court wanted to provide the executive branch with "deference" on matters that the agencies were better suited to judge (like mariner misconduct).  This case was unusual because the court had to decide which agency was entitled to deference:  the U.S. Coast Guard or the NTSB.

The court held that the U.S. Coast Guard's interpretation of the regulations at issue were entitled to deference both by the court and the NTSB.

Back to the Edmund Fitzgerald, the National Transportation Safety Board report published its findings in a report and the abstract of the report stated:

About 1915 EST on November 10, 1975, the Great Lakes bulk cargo vessel SS EDMUND FITZGERALD, fully loaded with a cargo of taconite pellets, sank in eastern Lake Superior in position 46 59.91 N, 85 06.61 W, approximately 17 miles from the entrance to Whitefish Bay, MI. The ship was en route from Superior, WI, to Detroit, MI, and had been proceeding at a reduced 3 speed in a severe storm. All the vessel’s 29 officers and crewmembers are missing and presumed dead. No distress call was heard by vessels or shore stations. The Safety Board considered many factors during the investigation including stability, hull strength, operating practices, adequacy of weathertight closures, hatch cover strength, possible grounding, vessel design, loading practices, and weather forecasting. The National Transportation Safety Board determines that the probable cause of this accident was the sudden massive flooding of the cargo hold due to the collapse of one or more hatch covers. Before the hatch covers collapsed, flooding into the ballast tanks and tunnel through topside damage and flooding into the cargo hold through nonweathertight hatch covers caused a reduction of freeboard and a list. The hydrostatic and hydrodynamic forces imposed on the hatch covers by heavy boarding seas at this reduced freeboard and with the list caused the hatch covers to collapse. Contributing to the accident was the lack of transverse watertight bulkheads in the cargo hold and the reduction of freeboard authorized by the 1969, 1971, and 1973 amendments to the Great Lakes Load Line Regulations.

The tale was memorialized in a song by Gordon Lightfoot which, in full disclosure, has been hummed or sang on every ship I have ever sailed on.  As the song reminds us, the sea is, and always has been, an ever present danger to sailors worldwide. 

DC Showdown Over Fisheries Law Amendments

Ah, the bloggers's dream:  juxtaposing DC Showdown with Fisheries Law in the title of your post.

On a more serious note, domestic fisheries are a $5B component of our national economy with certainly more impact locally in those ports where fish are landed.

The governing statute which sets out federal regulation of fisheries is the Magnuson-Stevens Fisheries Conservation and Management Act, codified at 16 U.S.C. 1801 et seq.

Congressman Young (AK) introduced a bill updating the Magnuson-Stevens Act in ways that trouble the White House.  The bill, H.R. 1335, contains some interesting provisions: 1) exempting fishery management actions from the National Environmental Policy Act and replacing it with a different type of study; 2) changing the types of fish counted towards the sustainable stock figures (red snapper killed during oil drill platform removal are not counted, nor fish seized from foreign fishers violating U.S. EEZ); and 3) extending State jurisdiction over recreational red snapper fishery in the Gulf Coast.

The White House says that President Obama will veto the bill if it gets passed by the Congress. Per Congressman Young's website, the House is set to vote on the bill today.

Stay tuned.

Coast Guard Announces Video of the Year Contest

This is a bit afield of our usual fare of condemnation, Jones Act and maintenance and cure cases.  But, since it is the end of the year, we thought you may want to participate in the Coast Guard's Video of the Year contest.  Vote here.

 

Being a former cutterman, I'm a bit partial to the cutter video.

 

 

 

Or for a flashback to my first ship, the IRIS, watch buoytending in action:

 

Federal Safety Board Recommends New Regulations for Parasailing

Off we go, into the wild blue yonder?

Parasailing: A neat experience for a vacationer or an industry in need of regulation?

[Photo courtesy of wikiepedia commons].

The National Transportation Safety Board issued a report entitled Parasailing Safety today.  The NTSB issued this report in response to several accidents on parasailing vessels.

Per the Executive Summary:

This special investigation report examines parasailing accidents in the United States and its territories, and identifies several areas where the risk associated with parasailing may be mitigated. Each year, an estimated 3 to 5 million people in the United States participate in parasailing; however, no federal regulations or guidelines establish specific training or certification for parasailing operators. There is no requirement for inspection of the parasailing equipment, and no requirement to suspend operations during inclement or unsuitable weather conditions. As this report will describe, passengers seeking to enjoy the thrill, adventure, and panoramic views of parasailing risk becoming accident victims. Due to the nature of parasailing, accidents usually result in either serious injury or death. 

This investigation report strives to reduce the number of injuries and fatalities associated with parasailing through recommendations that will improve safety for parasailing passengers and operators. The report also examines operations, equipment, and the various dynamic forces that affect parasailing.

As a result of this investigation, the National Transportation Safety Board makes new safety recommendations to the United States Coast Guard, the Federal Aviation Administration, and the National Association of State Boating Law Administrators.

The NTSB made several recommendations to the regulating agencies.  They are:

To the United States Coast Guard:

1. Implement a specialized license endorsement that all holders of a valid Coast Guard merchant mariner credential would be required to obtain before conducting parasailing operations. (M-14-11)
2. Incorporate by reference ASTM International’s parasailing standards to govern all parasailing operations. (M-14-12)

To the Federal Aviation Administration:

3. In accordance with 14 United States Code 141 and 49 United States Code 106(m), request assistance from the Coast Guard to enforce existing Federal Aviation Administration regulations applicable to parasailing operations. (A-14-064)

4. Review all existing regulations and special provisions that are intended to separate parasailing and aircraft operations, and take appropriate action to ensure that these directives are in harmony and consistently applied nationwide to reduce the risk of midair collisions. (A-14-065) 

5. Work with the Coast Guard to resolve conflicts between (a) the existing Federal Aviation Administration special provision that gives aircraft right-of-way over parasailing vessels, and (b) the existing international and inland navigation rules that imply that parasailing vessels are restricted in their ability to maneuver and, therefore, should have the right-of-way. (A-14-066)

To the National Association of State Boating Law Administrators:

6. Draft a model act that may be used by your membership as a framework for state legislation to reduce the risk associated with parasailing. (M-14-13).

One interesting finding of the NTSB.  Knots, including the ubiquitous bowline, make a line (rope) weaker.  Bowline is way easier to tie than the sheepshank, as Richard Dreyfuss well knows:

 

What? No SOS Anymore? Coast Guard's Culinary School

Gone are the days of SOS in the Coast Guard?

Based on a great article in the San Francisco Chronicle, it appears so.   

The Food Service Specialist School trains Coast Guardsman to staff galleys onboard Coast Guard cutters and at bases nationwide.  The school is located near Petaluma, California, in a ubiquitous rural area known as "Two Rock".  

While the image of a Coast Guard recruit does not typically include chef's whites, everyone in the military has to eat. The 150 "culinarians" who enter the program each year spend their mornings in a sparkling, Williams-Sonoma-style, TV-ready kitchen classroom, then practice the recipes in industrial galley kitchens under careful watch, and tastings, of their instructors. Their efforts turn into 400 daily meals that are served to residents of the Coast Guard Training Center, and to military veterans who come for breakfast, lunch and dinner.

Aside from the few who have worked in fast food or chain restaurants, most recruits show up with little kitchen experience.

"I'm getting high school grads and people with law degrees," said Justin Reed, master chief in charge of the Coast Guard Culinary School.

 

U.S. Liability for Damage to Vessels Suspected of Drug Smuggling - Ninth Circuit Decision

The Ninth Circuit Court of Appeals just handed down a decision relating to the federal government's liability for suspected drug smugglers' vessels, damaged during the law enforcement investigation.  The case is Tobar v. United States and the opinion can be found here.

The U.S. Coast Guard suspected an Ecuadorian fishing boat of illicit activities.  With authorization of the Ecuador government, the Coast Guard boarded the boat, searched for drugs and towed the boat to Ecuador.  The crew brought various tort claims against the U.S. government.

The government argued that it was immune from the claims of Ecuadorian citizens.The trial court agreed.

On appeal, the Ninth Circuit found that the United States had waived sovereign immunity under the Public Vessels Act.  Under that Act, the United States does allow for citizens of foreign countries to bring claims in federal court if their own country would give a forum to a United States citizen.  This is called reciprocity.  So, the litigants put forth evidence of what Ecuador law would be if an American brought the same damage suit in its courts.  The Ninth Circuit found that Ecuador would give a forum.

The government then sought to avoid liabilty by arguing that the discretionary function exception to the Federal Tort Claims Act barred liability.  If the government has the discretion to act or not act, then liability cannot be found.  But, the Public Vessels Act does not have an explicit discretionary function exception, like the FTCA does.  The Ninth Circuit, and other circuits, have read into the Public Vessels Act, a discretionary function exception and the Ninth Circuit followed that logic here.

Finding that the government did not have discretion to NOT pay damage claims, the Ninth Circuit remanded the matter to the trial court for a trial.

I don't see any circuit splits, but the Supreme Court may be interested in a court-inserted exception to a statute.  Stay tuned.

Coast Guard - You Want Your Boat Back? We Set Bond Amount - Angelex v. US

Hot off the Press:  the Fourth Circuit Court of Appeals just issued a decision arising out of a "Magic Pipe" case and the shipowner's attempt to post a bond allowing the offending vessel to sail.  The case is Angelex, Ltd. v. United States of America and the opinion can be found here. 

The United States is a signatory to the MARPOL treaty of 1978 which seeks to eliminated international pollution from the marine environment.  To implement the treaty, Congress enacted the "Act to Prevent Pollution from Ships", codified at 33 U.S.C. 1901-15.  The Act and the regulations implemented under the Act's authority require ships to maintain an Oil Record Book which records discharges of oil. During a Coast Guard inspection of Angelex's vessel, the inspector discovered that the oily water separator was bypassed and a crewmember advised the inspector that oily water was discharged. That discharge was not noted in the Oil Record Book.

As is customary, the Coast Guard requested that the Customs Service withhold "clearance" so that the vessel could not depart from the U.S. port.  The Act does allow shipowners to post a bond which, if approved, would allow the vessel to sail.  The Coast Guard and shipowner tried to negotiate a bond amount, but could not reach an agreed upon sum.  The shipowner brought suit and with the judge's assistance reached an agreement as to bond amount, subject to approval by Coast Guard Headquarters.  Headquarters did not approve the agreed-upon conditional amount.  The judge issued an order directing the bond amount and other terms.  The government appealed.

The Fourth Circuit overruled the district judge's decision.  It found that under the Act to Prevent Pollution from Ships, the Coast Guard had fully discretionary authority to set the bond amount.  Therefore, the courts had no jurisdiction under the Administrative Procedures Act.  Also, because the statute had a provision that allowed a claim against the government for unreasonable detention.  This safeguard against overreach by the government made the shipowner's requested injunctive relief to be beyond the federal court's power.

The Passing of a Coast Guard Legend - Ray Evans

In the annals of Coast Guard history, the Coast Guardsman most known for heroism is Douglas Munro who died rescuing Marines at Guadalcanal.  He was posthumously awarded the Medal of Honor and has a cutter and building named after him.

Another Guadalcanal hero was Munro's friend, Ray Evans.  Commander Evans was awarded the Navy Cross  He died this year and was laid to rest yesterday.

 

 

He was interviewed about that day at Guadalcanal and I've included the text of that day below:

I recall a major came down and a battalion major came down and I don't remember his name [Major Ortho L. Rodgers, USMC] I don't think I ever knew his name really.  He, he talked to Dexter and the next thing I know, the commander is telling us that Doug and I -- that they were going to send this battalion, I guess it was a battalion of Marines, to land umm at Point Cruz.  As I understood the situation, they had tried to cross the Matanikau River. And the Japanese were well entrenched on the other side of the river and they [the Marines] couldn't get across.  So they sent a contingent up into the mountain, across the back of 'em to get behind them. And the, and the plan was to send these by water four miles across and land them at Point Cruz behind the Matanikau River, beyond it, and, and get them in a pincer movement.

Ahh, and so they came; we loaded up a, I don't know, ah ten or twelve infantry boats, and five or six tank lighters and under covering fire from the destroyer [U.S.S.] Ballard [AVD-10] made an amphibious landing.  Umm, unfortunately, we were supposed to land at the head of the cove and we found the coral would not allow us to do that so we had to make an abrupt right turn and land on the beach.  At the side.  And we warned the major that immediately after they left the boat he should have his men make an immediate left and go to the head of the, to to follow their plan. But unfortunately he caught a mortar immediately after he got off the boat and he never gave that order.  So they went up the wrong hill and the wrong place right into the Japanese and eventually they ran past the Japanese lines and then had to fight their way back through it to get to the beach.  

In the meantime, all our boats had gone back to the base except the major had requested we leave one boat behind, for immediate casualties.  And so I stayed, I elected to stay behind and I had a coxswain named Sam Roberts from Portland, and the two of us were laying to in this LCP.  Unfortunately, we laid too close to the beach and the Japanese fired an automatic weapon at us and hit Roberts, hit all the controls, the vacuum controls on the boat. I slammed it into "full-ahead" and we tore out of there and I tore back to the, to the base, four miles, and when I got to the base, I pulled it out of gear, but it wouldn't come out of gear, so we ran up on the beach, which is a long sloping sand beach.  Ran up on the beach the full length of the boat before it stopped. 

Umm, and Roberts unfortunately, they got him in an evacuation plane to New Hebrides, and he died on the way, very sad.  Then, no sooner had that happened then word came down that they [the Marine landing force] had to be evacuated.  And so back we go.  And this time, Doug said, we had two air-cooled Louis machine guns between us, with rotary drums if you remember, you've seen that kind, so we elected to stay on one boat with the two guns and act as kind of a covering fire, while we sent the rest of the boats in to load these people.  And they had lost a, I think they had twenty-five casualties and then they had about twenty-five that were wounded, and we got all the wounded and all the all the rest of them off and, the last tank lighter load started out to sea and we followed him and found one tank lighter around the point was stuck on the beach and couldn't get off.  So we sent that tank lighter with us in to tow him off and we acted as covering again.  And we were having no fire from beach whatsoever.  It was relatively easy.  And he got him off and both the tank lighters headed off to sea and we headed out to sea behind him.  And I saw that, and Doug was facing forward, and I was standing up by the coxswain looking back, I saw this line of waterspouts coming across the water, and I yelled at Doug to get down, he couldn't hear me over the engine noise, and it hit him.  It was one burst of fire.  And that's how he died.  And that's how it happened.

 

 

Japan Coast Guard Training Ship - Learning About HawaiiOceanLaw

Last Saturday, I was invited to teach several dozen recent graduates of the Japan Coast Guard Academy about the U.S. Coast Guard, Coast Guard careers and the Coast Guard operations in the Pacific Ocean.

Guardians of the Pacific