Authoritative Literature

AUTHORITATIVE LITERATURE: 
This section is all about the use of regulations, codes, standards and authoritative literature in maritime litigation. This section is designed to assist the maritime or admiralty lawyer in both using such codes in pleadings and argument but also in working with, or attempting to work against expert witnesses.

We begin with a discussion:

WHAT MAKES A MARITIME BOOK AUTHORITATIVE?

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WHEN DO YOU NEED AUTHORITATIVE LITERATURE?

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What makes one publication on the nautical arts and sciences or maritime law "authoritative" and another not definitively so?  The answer to that question varies by the field of endeavor. In the academic realm publications that are on the Coast Guard's list of sources for professional merchant mariner exams, or a Coast Guard suggested reading list, are clearly authoritative. The academic authoritative nature of such publications extends to other realms such as law. For example, a legal advocate attempting to establish the proper technical practice of seamanship in a particular marine transport evolution such as mooring, might face a dishonest expert witness willing to call whatever was done, no matter how hazardous, a "custom of the industry". A "custom of the industry" will not be accepted as "ordinarily prudent" by an admiralty or maritime court if a "standard of instruction" can be identified. Books used to derive Coast Guard administered professional license and certification examinations easily establish a "standard of instruction". When standards of instruction conflict with actual regulations the regulations govern. However this is extremely rare since most regulations are only passed after the regulatory agencies discover an unacceptable accident or loss rate in a particular activity, then the resulting regulations most often reflect "standards of instruction."

 Not all maritime operations and technological applications are covered by either regulation or standards of instruction as contained in Coast Guard published examination sources or recommended reading lists. A second tier of authoritative literature based on standards of instruction may be discovered by reviewing the actual current texts books used in the maritime academies for various courses. Some times these are surprisingly uniform and sometimes they vary by institution, but use in a course of instruction in a maritime institution of higher learning is a viable claim to "authoritative literature status". However the advocate or curriculum developer must take care to check the texts of several courses for any potential conflict. 

 Some nautical books are "classics" such as "Bowditch" or "Dutton's" tracts on navigation because they qualify on several fronts such as making it onto official Coast Guard examination source and suggested reading lists, extensive use in various courses of nautical instruction, continued reference in admiralty and maritime courts, and age itself. Others like Chapman's:  Piloting Seamanship and Small Boat Handling not only meet instructional text, court usage, and age criteria but are updated on a regular basis by the organization owning the copyright.



 More recent topics or those of less general interest may have authoritative publications associated with them. These publications may be periodicals or short "guide" or "commentaries", or even corporate operations manuals. Their authoritative nature is a matter of the status accorded the publication, its editorial policy (for example the U.S. Naval Institute PROCEEDINGS is a high status publication, but known for publishing opposing professional views.) PROCEEDINGS articles are most authoritative when they represent the end of a series of in print discussions that end in a consensus. The authoritative label might also be claimed when a PROCEEDINGS article draws a significant amount of complimentary commentary and little or no negative critiques in subsequent issues.

 Regulations are of course always "authoritative." However a careful reading of the pertinent marine regulations in the Code of Federal Regulations  (CFR) reveals that they often reference various lesser known "codes" of non-government organizations. When that reference indicates that the regulated entity, be it a ship, vessel, or human actor, must conform certain equipment, equipment arrangements, or operations to enumerated codes that language is called "incorporation by reference."  Once a non governmental code is properly "incorporated by reference" the pertinent section of the code gains the force of regulation. In the maritime world the most common examples of incorporation by reference are incorporation by the U.S. Coast Guard into sections of Title 46 or Title 33 of the Code of Federal Regulations (CFR). One of the organizations prominently featured in Coast Guard incorporation are various segments of the National Fire Protection Association (NFPA) code. The NFPA is also prominent for incorporation by reference in municipal building codes. The concept of incorporation by reference is not limited to admiralty or maritime law.

 An excellent aid in determining the existence of an applicable code to a particular activity is the American National Standards Institute (ANSI). The ANSI catalogue describes areas of activity and lists relevant standards by ANSI Catalogue number. Here is a hyperlink to ANSI http://www.ansi.org/ .  Sometimes in the ANSI system the relevant code or "recommended practice" is an actual regulation. To determine if a non-regulation ANSI standard has the force of regulation through incorporation by reference you must search the relevant regulations for the actual incorporation.

 In ordinary tort law a violation of a regulation or even an "accepted relevant standard" can contribute to the "weight of the evidence" in determining causation and affixing liability. However in admiralty law determining the applicability of a regulation or a code or standard incorporated by reference may have far greater consequence in many jurisdictions. In maritime personal injury cases, collision (involuntary contact between two vessels "underway" (as "underway" is described in law) , or allision (involuntary contact between an "underway" vessel and a fixed object like a bridge or pier) the "Rule of the Pennsylvania", or the "Pennsylvania Reyes Doctrine", may operate to place a very difficult burden of proof on the regulation violator. That burden is to prove that their violation not only didn't directly cause the accident or injury, but could not have contributed to causation. Often the failure to prove this requirement results in a presumption of fault.

 Violations of marine safety statutes, regulations, or codes and standards incorporated by reference or by application of a general duty clause often invokes application of the "Pennsylvania-Ryes Doctrine" by the courtThe Pennsylvania [86 U.S. 125 (1873) was a collision case. The Pennsylvania established a precedent that violation of a safety statute shifted the burden of proof in a collision to the violator. Moreover, the burden was to not only prove that the violation did not cause the accident but could not have contributed to the accident. Over time subsequent cases applied the "doctrine" to not only statutes but to regulations as well eventually the "Rule of the Pennsylvania" was applied in some Federal District Courts to cases of crewman and passenger personal injury.

 The application to maritime personal injury was most clearly articulated in Reyes v. Vantage Steam Ship Company [609 F.d 140, 5th Cir. (1980). Since the 1980s the concept that a violation of a safety statute or regulation by a maritime employer may shift the burden of proof to a defendant employer or common carrier of passengers in a maritime personal injury case has been referred to as the Pennsylvania-Reyes Doctrine. Most admiralty authorities agree today that the Pennsylvania-Reyes Doctrine most often operates to the injured plaintiff's advantage. This advantage to the plaintiff stems from not only the presumption of causation contained in the "doctrine" and the related shift in the burden of proof to the defense, but also due to precedent in subsequent related cases greatly reducing causation requirements when such a violation is established. Subsequent applications of the "doctrine" have allowed an inference of causation on "very thin facts" [See Wilkins v. American Export  Isbrandtsen Lines, Inc. 446 F.2d 480, 2nd Cir. (1971)]. Additionally, it appears that in some jurisdictions it has often been ruled that when the "Pennsylvania-Reyes Doctrine" is successfully invoked under FELA and the Jones Act, contributory fault by the plaintiff may not be considered.

 The "Pennsylvania-Reyes Doctrine" may apply to any maritime safety regulation by any agency including OSHA, but most especially applies to Coast Guard regulations. [See Kennan v. American Dredging Co. , 335 U.S. 426, 78 S.Ct. 394 (1958) which doesn't mention "Pennsylvania -Reyes" by name, being heard before Reyes was filed, but after the long string of precedent that led to Reyes).]  It is important for the lawyer operating in admiralty or a maritime milieu to determine when an admonition for a certain safety practice found in "authoritative literature" is authoritative enough to have the force of law imparted by "incorporation by reference." The authoritative nature of "incorporation by reference" is so powerful as to impose nearly impossible burdens of proof on a client or opponent, and to reverse the burden of proof.  
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 The Code of Federal Regulations to which we have provided a hyperlink (The Federal Register site, there are other on line searchable versions) is readily acceptable as "authoritative literature" by courts if the regulation is directly and legally applicable to pertinent circumstances. Sometimes where the circumstances are similar but the regulation is inapplicable legally, the courts have accepted the closest applicable regulation as authoritative literature and have considered the practices described in the regulations with the same weight ordinarily assigned to "authoritative literature ." The most commonly cited maritime regulations are found in the following titles of the Code  of Federal regulations (CFR)
Title 46 CFR: Shipping: Here the advocate will find the detailed safety regulations by class of vessel such as Subchapter T-Small passenger vessels, or  subchapter H-Large passenger vessels, or subchapter I -Cargo and Miscellaneous Vessels, or subchapter I-A Mobile Offshore drilling rigs, etc. This title contains within its various vessel type specific subchapters, the requirements for fire fighting equipment, life saving and survival equipment, working hour requirements, and health and sanitation requirements, drills and other operational matters. Most maritime personal injury cases involve at least one violation of a provision contained in this Title.
Title 33 CFR: Navigation and navigable waters: This title describes aids to navigation on the navigable waters of the United States and is most often encountered in allision cases ( Collision, involuntary contact between two moving vessels, Allision: unintentional contact between a vessel and a fixed object.)
Title 49 CFR: Transportation: This title contains regulations that govern dangerous cargo shipments by water as well as other transportation modes.
 These are the most common titles of the Code of Federal Regulations cited in admiralty courts but of course not the only titles cited. As previously discussed sometimes these regulations will have the force of law and at other times they are at best sources of "authoritative literature."

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INTRODUCING JANE'S INFORMATION GROUP

JANE'S IS CONSIDERED THE DE FACTO  PUBLIC INFORMATION  SOURCE ON  DEFENSE , SECURITY, TRANSPORT, AND LAW ENFORCEMENT. Only a relatively few of their publications are available through non Jane's organization sources like the historic volume pictured above from Amazon. We are providing you with information on Jane's organization and the authoritative nature of their publications here and vital hyper links here and permanently posted in our NAVAL INTEREST, MERCHANT MARINE, and AUTHORITATIVE LITERATURE "Special Interest Pages.
  WHAT IS "JANE'S?     
 Jane's was founded in 1898 by Fred T. Jane. The organization is based in London and is presently owned by IHS, Inc. During the World Wars Jane's published aircraft and ship recognition manuals for the British Admiralty. Before WWI Fred T. Jane was publishing guides to the war ships of the various major power navies. Over the years the line of reference works has expanded to include all manner of defense, transport, security and law enforcement subjects and timely specialty area news and analysis services. Jane's is considered an "Open intelligence source" by most of the World's intelligence services but most especially naval intelligence services. The link below will take you to a Wikipedia article providing a more complete history of Jane's Information Group with links to articles on Fred T. Jane and other aspects of the Jane's story.
                                      http://en.wikipedia.org/wiki/Jane's_Information_Group    

JANE'S IS HIGH QUALITY AND HIGH PRICE

 Jane's keeps such tight control of their intellectual property that it is extremely difficult to find even an image of their founder Fred T.Jane that is in the public domain. When the U.S.Naval Intelligence Professionals Organization carried an article about Fred T.Jane some years ago, Jane's would not release a free image of Fred T.Jane for use in their publication THE QUARTERLY.  Jane's would not provide a free founder's photo even though the article amounted to free advertising to an audience Jane's would very much like to market to. If there is any good news for the researcher who is short on research funds it was that at least the organization apparently sold such photographs with the price adjusted based on the circulation of the purchasing publication.  In the end the the intelligence association publication used a composite sketch similar to a police artist drawing done by a talented volunteer in lieu of an actual photo. Jane's does have some competition such as Defense News, Flight International, and Aviation Week and Space Technology . However as the titles indicate their competition isn't as comprehensive across the full spectrum of defense, security, transport, and law enforcement.

 No one matches Jane's reputation for accuracy. Indeed founder Fred T.Jane was quite willing to go broke before compromising on quality and nearly did so on at least two occasions. In the areas that Jane's covers it is almost impossible to ignore Jane's, but utilizing Jane's publications at Jane's prices is not always possible for the unfunded academic  and most any research project of limited means.  However there are some Jane's publications of historical interest that can be purchased from Non Jane sources at reasonable prices such as the WWII reference work pictured at the top of the article available through Amazon. So at least historical researchers may be able to obtain personal copies of relevant Jane's references at ordinary book store
prices. Here is some of what Amazon has available:


     Jane's Counter Terrorism      
We don't usually show prices since they are so subject to change and a click on the icon link will usually bring you the latest prices  but we let the price show through on Jane's Armour and Artillery year books. The "best price" shown is for used books, new condition non current year Jane's references typically run in excess of $120. Amazon is actually vending the current year on Armour and Artillery, current year prices run  in excess of $2,000. This is why current year books are rarely found outside of intelligence organization reference libraries, and perhaps the Library of Congress and comparable national libraries. As you can see however, once a reference is no longer current, the price falls and some out dated JAne'seferences may be found in public libraries. Click on any of the JANE'S FIGHTING SHIPS icons  and you will be able to find your way to all of the extensive offerings of Amazon for the JANE'S FIGHTING SHIPS Series. It appears you can even order a current volume here if you have about $3,000 but the non current year works and the historical summaries such as  Jane's War At SEA 1897- 1997 are very reasonable, especially as used volumes through Amazon.
  JANES FIGHTING SHIPS 

 
                          
   ANNUAL REFERENCES AND PERIODICALS OFFERED BY JANE'S INFORMATION GROUP:

Books

(annual) If you click on most of the title below you will link to a Wikipedia description of the publication 

[edit]Periodicals

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TO MAKE DIRECT CONTACT WITH THE JANE'S ORGANIZATION:                                                            
http://www.janes.com/products/janes/index.aspx
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National Mariners Association.US
124 North Van Avenue, Houma, LA. 70363
Captain Joseph Dady, President - 551-655-0502
Captain Rchard Block, Secretary - 985-851-2134

NATIONAL MARINER'S ASSOCIATION NUMBERED REPORTS (Under construction )                                                             

Numbered Report Index: http://www.nationalmariners.us/researchreports.html

A BRIEF HISTORY OF THE NATIONAL MARINERS ASSOCIATION  

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 A Marine Safety Information Bulletin Alerting The Boating And Aviation Communities To Specific Hazards Relating To Parasailing Operations Has Been Issued By The U.S. Coast Guard.  

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 The hazards of concern involve flight issues when aircraft operate in the vicinity of parasail operations and operating limitations for the vessel operators towing parasailors. Additionally the Marine Safety Information Bulletin (MSIB) addresses banner towing by aircraft, this type of aerial advertising is frequently seen over public beaches.  Pilots, flight crews, vessel operators and crews should be especially alert when operating in the vicinity of parasailing and aerial banner towing operations. Moreover parasail operators and banner towing operations should be especially aware of each other as frequently they are operating at altitudes where contact is possible. 

 The Coast Guard Marine Safety Information Bulletin noted: 

   " Last summer, there were two incidents where aircraft towing banners (banner tows) collided with parasail rigs aloft that were being towed by small passenger vessels. Fortunately, there were no passenger injuries, only property damage, but these incidents could have resulted in serious injury or a fatality. "

  The MSIB  we are alerting our readers to outlines the applicable FAA and USCG regulations and provides additional guidance to promote safety of parasailing while operating with passengers aloft in the vicinity of banner tow or other aircraft operations. The FAA regulates both the aviation operations involved in both para sailing and banner towing and other forms of aerial advertising, and the USCH regulates the vessel operations. The FAA sets altitude limits for both operations but in this MSIB the Coast Guard reminds both parasail operators and banner tow aviators that frequently towed banners are flying as much as 100 to 150 feet below the aircraft, which according to its altimeter, is flying at the regulation minimum altitude. Additionally the aircraft pilot has blind spots immediately ahead and below him and may not see the parasailor if banner and parasailor are at the same altitude and in close proximity. It is at such times that danger of aerial collision exists. 

 Here is an especially good piece of advice from the MSIB:

  "The FAA concluded that parasails and parasail operations are subject to regulations applicable to kites under Title 14 Code of Federal Regulations (CFR) part 101, and, therefore, has prescribed certain operating (flight) limitations and notice and marking requirements. Parasail operators who need to deviate from these limitations and requirements must request and receive approved waivers for parasail flight from the nearest FAA Service Center (see enclosure 1). Commonly requested and waived regulations include 14 CFR 101.13 (a)(4), 14 CFR 101.15, and 14 CFR 101.17. Additionally, when requesting waivers, parasail operators should maintain a copy of their waiver request as evidence of submission. This may be used for compliance purposes until the waiver arrives. To promote maritime and aviation safety, parasail and banner tow operators, who fly within common geographic areas, are encouraged to be proactive in meeting with each other through regular safety meetings, especially before the start of each operating season"

 The American Admiralty Information Services Organization has never been big fans of Coast Guard regulations but we do laud one aspect of the Coast Guard regulatory culture. The Coast Guard institutionally follows the process Lyndon Johnson called "Jaw Boning" in that they use their Marine Safety Information Bulletins , Notice to Mariners System, and Industry Advisory Committees to avoid ineffective or counterproductive regulations (with distressing inconsistent results) and to correct safety and environment hazards without regulation. The banner towing and parasailing business communities are being encouraged through "jaw boning" to take up some effective "jaw boning" of operating altitudes between and among themselves. This usually is a signal to do something or be subjected to additional regulation, possibly with some ham handed business killing provisions. 

 Our analysis is that the party with the most room to compromise is the parasailors. The banner towing community already has a difficult time getting the banners down to a level where they can be read by beach goers. This keeps the aircraft flying at minimum regulatory compliance levels.  That often results in the banner itself intruding into kite operations air space, the realm of the parasailor, parasailing surfboarder , and beach kite flyers. We remind banner towing aviators that "minimum regulatory compliance" is not the court test of safe operation in the event of liability lawsuits.  A "standard of care" that a court will impose on any sort of marine or aviation, and especially on blended operations is likely to be quite a bit higher than "minimum regulatory compliance" or a "reasonable man test". The USCG and the FAA must write national regulations that may or may not work for both or either of these two types of business very well on a local level. The Coast Guard reminds the two business communities that there are procedures for variances and exceptions built into both the USCG and FAA regulations.  Its time to get together and review you local situation before the season really gets started. Time is short. Locally agreed upon "standard operating procedures" that do not exceed any regulatory requirement often need no Federal endorsement and if observed tend to improve the posture of any such business involved in a post accident liability claim. Operators who refuse to operate within such "jaw boned" parameters hazard their liability positions and insurance.

 We again note that in our opinion the parasail operators have the most room to compromise. Generally any height above treetop level provides a thrill ride. It is conceivable that extra height gives the boat a bit more surface vessel collision avoidance maneuverability. But such operations can probably be well performed pretty far below maximum kite air space. The towed banner business community has no business if their banners can not be read and suffers the constant temptation to operate at "minimal regulatory compliance" altitudes which often drops the banner itself into kite air space. A local compromise on an air space safety margin could be solution. Another alternative is surface operations lanes. This would involve parasailing take off and landing and flight operations at a designated distance off the beach and banner towing operations parallel to and usually inshore ( for better readability" of the advertising banner. Such a solution may well require application for Coast Guard and / or FAA variances, but the concerned business communities should be confident of approval if their local proposal actually improves on the base federal regulations. 

 To recap; the parasailors need above tree top level plus altitudes that are within the kite regulations for both the effect of a thrill ride and for a sufficient tow line cantentary to give the towing vessel surface navigation collision avoidance maneuverability.  The banner towing business need sufficiently low altitudes and close in horizontal transit lanes for banner readability. THE COAST GUARD IN THIS MSIB IS ALERTING THE TWO BUSINESS COMMUNITIES THAT THE MOST EFFECTIVE WAY TO ACHIEVE THIS IS LOCAL AGREEMENTS, SOME OF WHICH MAY REQUIRE THE FEDERAL REGULATORY VARIANCE PROCEDURES. The Coast Guard is issuing this helpful notice in the wake of a couple of near misses. If there is a fatal accident this season it may be too late to avoid additional federal regulation, which often because it must address an issue nationally ends up killing certain local businesses. Get the job done locally starting this pre season. Meanwhile we suggest if at all possible given your local situation that both business communities observe common sense this season and avoid operations any where near the edge of your allotted air space. 

 Now there is another issue, the limitations on surface maneuverability on the towing water craft once parasailors are launched. It is imperative that such vessels with their aerial tow advertise their restricted maneuverability to other surface vessels. Most recreational boaters and personal watercraft operators have little knowledge of the inland or international rules to avoid collision. Parasail water craft operators are supposed to have at a minimum a U.S. Coast Guard motor boat operator license and have had to pass formal written examination on these regulations. There can be no excuse for such vessels not using the related whistle signals, especially the danger signal if another surface vessel invades your required maneuver space, or displaying the required or suggested lights or day shapes indicating your restricted maneuverability status. But a "prudent operator" will go beyond that given the wide spread general knowledge that you are operating within a recreational boating space dominated by vessel operators of typically limited skills. This is a job for management. It is important to ADVERTISE at boat launch sites, marinas, and other venues where recreational boaters congregate  that they should stay well clear of parasail operation due to the limited maneuverability of the towing vessel.  

 Finally, the beach going public can help. If you decide to go parasailing tell your operator that you would like to fly at the minimal safe altitude for avoiding aerial advertising air space and still providing him as vessel operator ample surface maneuverability. We promise you that such a height will still be a thrill ride. But no one needs the thrill of aerial collision or near miss. 

 For further information, please go to: http://www.uscg.mil/msib/docs/003_15_3-17-2015.pdf


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THE ENDURING PRINCIPALS OF MARITIME INTERNATIONAL LAW Click on this link to view the book:
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  An E-book available for you to read or use as a reference on line without charge. The book is a derivative work of the AMERICAN ADMIRALTY BUREAU'S GUIDE TO THE ENDURING  PRINCIPLES OF INTERNATIONAL MARITIME LAW  by R.F. Bollinger,  ISBN 1-879778-28-9 copyrighted in 1995. It was produced under special derivative intellectual property rights and agreements and contains updated text that reflect events such as the Somalia pirate problems and the China Seas issues that have arisen since 1995. The original book is still available as a print on demand spiral bound paperback suitable for keeping on a navigation bridge for ready reference. It was published as a practical work a day guide for Merchant Marine Officers, steamship agents Naval and Coast Guard Officers, and Senior Petty Officers. It contains the basic and unlikely to change enduring basic principles of maritime international law. The work was designed to help equip the professionals out there at sea and in foreign ports on America's ships to make good decisions when faced with unwanted boarders, overzealous local harbor authorities, pirates, asylum seekers, crewmen in need of notarial services, and a host of other issues common to the daily work situations of such professionals. If you would like the paper bound earlier version it is still available as a print on demand book at a very reasonable price from :

MARINE EDUCATION TEXT BOOKS (MET)
124  NORTH VAN AVENUE
Houma, LA 70363-5895
Phone: (985) 879-3866
Their Website is undergoing renovation as of this writing 11/3/2013 

TO READ THE E- VERSION ON LINE CLICK HERE: THE ENDURING PRINCIPLES OF MARITIME INTERNATIONAL LAW

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IF YOU ARE AN EXPERT WITNESS PREPARING YOUR REPORT OR FOR TESTIMONY A KNOWLEDGE OF FORENSIC ETHICS AND ADHERENCE TO A FORMAL ETHICAL CODE CAN GO A LONG WAYS TOWARDS AVOIDING IMPEACHMENT.  IF YOU ARE A LAWYER FACING CROSS EXAMINATION OF AN EXPERT IN A DISCIPLINE THAT YOU KNOW NOTHING ABOUT, "DUE DILIGENCE" REQUIRES THAT YOU EXAMINE HIS METHODOLOGIES AND PRESENTATIONS TO UNCOVER ANY IMPEACHABLE ASPECTS OF HIS OR HER TESTIMONY OR WRITTEN REPORTS. The American Admiralty Bureau has a seven page condensed but very comprehensive code that any expert witness may cite and any lawyer may refer to for a quick study in forensic ethics. Below our Chief Legal Correspondent expalins and links you the Code


TODAY THERE IS HELP FOR THE ADVOCATE IN FINDING AND PRESENTING ETHICAL EXPERTS AND IMPEACHING THE UNETHICAL



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Louis Brandeis, our Chief Legal Correspondent

 We want a court system that will fairly represent the laboring seaman, the professional officer, the ship owner, the cargo owner, the insurer, and the affected public. We want such a court system for our maritime causes not because it is good for the nation's maritime business but because it is dishonorable to tolerate any other kind. There are many societal  forces that combine against this desired end state. The counsel selected to represent important private interests such as those of the ship owner or insurer possesses usually ability of a high order, while the injured seaman, or the public interest is often inadequately or wholly unrepresented. That alone presents a condition of great unfairness to the injured mariner or the public interest. Additionally complicated matters not a part of the every day experience of the ordinary public such as most matters involving the nautical arts and sciences often force the court to rely excessively on the professional opinions of expert witnesses. Since my departure from the American Supreme Court Bench to serve at the bar of an even more supreme court I have observed that maritime endeavor has amassed in the last half century an abundant body of easily cited  codes, standards, and regulations. It has become rather difficult to believe that an expert must rely on the "custom of the industry" for a description of the proper and safe way to conduct a maritime operation. This is particularly so when the custom of the industry seems to be the direct cause of an injury.

 But even a maritime expert who cites to some codes, standards, and regulations in his reports and testimony may be simply using that old lawyer trick, "useful language". The advocate who builds a case on "useful language" simply selects from the codes, standards, regulations, and authoritative literature out of context language that sounds like it supports his argument. But the duty of the expert witness is to justice and not to the plaintiff or defendant. It is the duty of the lawyer to defend his client, it is the duty of the expert to defend his findings only. It is the duty of the expert to inform the court on technical issues. It is not the duty of the expert to advocate for one side or the other in a dispute. To that end in an ideal world the Judge would appoint the experts and apportion costs to both sides with the expert answering only to the judge, but then that might deny one side or the other of the unique insight of a particular expert. So it has evolved that either side may hire experts. The trier of fact must be able to discern when the hired expert is in fact a hired gun utilized only to support the attorney's theory of the case and line of argument and willing to bend the truth or formulate it in an argumentative manner. Since the trier of fact may have little subject matter expertise , hence the theoretical need for an expert, the trier of fact must test the integrity and ethics of the expert. How does one do that with an expert in an unfamiliar profession? Here I think the American Admiralty Bureau about twenty years ago found an answer which we again bring to the attention of the Admiralty bar.

 The American Admiralty Bureau Code of Professional and Ethical Conduct may be referred to, or cited by any expert involved in a maritime dispute resolution and providing services of a forensic nature. An "adherent" to the code must comply with the enumerated standards for investigative methodologies and standards of presentation. The code is derived from authoritative literature on good forensic practices and ethics and can serve the cross examining lawyer as well as the report or testimony preparing expert. Because the code is condensed (about 7 pages) a lawyer can review the basics of good forensic ethics and methodologies quickly and prepare a cross examination that explores the process the expert took to arrive at and report on his conclusions. Often, without revealing a specific technical error an expert purveying "junk science" to the court has been exposed and impeached by simply demonstrating that good forensic methods, ethics, or standards of presentation were not followed. We will be posting a link to the code permanently in the AUTHORITATIVE LITERATURE SECTION.  You may read it now by clicking on this link: AAB CODE OF FORENSIC ETHICS





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THE AMERICAN ADMIRALTY BUREAU LTD. ON MARINE REGULATIONS CODES STANDARDS, AND AUTHORITATIVE LITERATURE: (Construction started 11/21/2012)



AMERICAN ADMIRALTY BUREAU, LTD.
                   The Old American Admiralty Bureau Trademark

The American Admiralty Bureau, Ltd. was an attorney service bureau that flourished between 1987 and about 2007 but closed formally as the original principals retired. During its twenty years of operation the "Bureau" as it was referred to, especially on the Central Gulf Coast helped create a lot of precedent in the admiralty and maritime tribunals all over the nation but especially on the Central Gulf Coast and the 5th Federal Circuit.The Bureau's mission statement was as follows:

"The mission of the American Admiralty Bureau is to serve the public interest and the needs of their clients by improving  marine safety through activities promoting the increase and diffusion of knowledge of the nautical arts and sciences, marine regulations, codes, standards, authoritative literature, and good marine practice.

 In furtherance of this mission , The American Admiralty Bureau produces technical books, seminars, consultations, research, and expert witness services.
                  

The expert witnesses of the American Admiralty Bureau fought the use of junk science in maritime personal injury law tribunals by strict adherence to a code of forensic ethics and report standards of presentation, and basing expert opinion on marine regulations, recognized codes, and standards, especially those incorporated by reference into the Code of Federal Regulations, and referral to authoritative literature with a formal system of recognizing what was actually authoritative, and standards of instruction. The Bureau stayed away from analysis of marine safety based on "custom of the industry" and proved many "customs of the industry" were intrinsically unsafe and often actually illegal.

 In order to assist the admiralty and maritime bars in determining how best to use marine regulations, codes, standards, and authoritative literature the Bureau published a numbered series of "COMMENTATORS" and several "Guides". Many of these are still viable guides and accurate predictors of truthful, accurate, and defensible expert testimony under a variety of often repeated litigation themes. In this section of the American Admiralty Books blog we will introduce the reader to the American Admiralty Bureau's publications , provide information on obtaining them and reproduce with special permission particular sections of  these works. Becoming familiar with this body work will assist any lawyer in making more effective use of marine regulations , codes, standards, and authoritative literature.

HOW TO OBTAIN THE WORKS OF THE AMERICAN  ADMIRALTY BUREAU.

 The works of the American Admiralty Bureau, with a few exceptions are mostly out of copyright and are being reprinted and hard cover bound by at least one university press, Amazon and other vendors advertise the titles, some at what we think is normal retail, some higher, some books new, others used and the prices can range to $350 and up. WE RECOMMEND THAT YOU USE ONLY THE ORIGINAL DISTRIBUTOR WHO STILL OFFERS THE ENTIRE INVENTORY OF AMERICAN ADMIRALTY BUREAU PUBLICATIONS AS PRINT ON DEMAND VOLUMES AT VERY REASONABLE PRICES USUALLY UNDER $50 PER VOLUME. THE ORIGINAL DISTRIBUTOR IS:

MARINE EDUCATION TEXTBOOKS
124 North Van Ave.
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Telephone: (985) 879-3866
24-Hour FAX (985) 879-3911
Website: http://www.marineeducationtextbooks.com/index.html     
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THE AMERICAN ADMIRALTY BUREAU ON WORKING WITH, AND THE IMPEACHMENT OF EXPERT WITNESSES 

                                                                   AMERICAN ADMIRALTY BUREAU, LTD.
During the over 20 years of the existence of the American Admiralty Bureau many a lawyer at many a deposition who had never encountered a Forensic Examiner of the American Admiralty Bureau was amazed when the Examiner showed up for deposition with what appeared to be his own lawyer!  The Bureau lawyer would introduce himself and explain that he was there to advise the Examiner on the application of the Bureau's Code of Ethics and to enforce the Code.  It was unheard of and caused quite a few jaws to drop but it soon became clear to clients and their opponents alike that Bureau Examiners really were "Friends of the Court" and not a hired gun, co advocates. Every written report of every Examiner started with a reference to the ethical code and announced that the contents of the report were derived using investigative , analytic, and testing procedures that met the requirements of the code and that the report met the "Standards of Presentation" of the code.  Once training in the code became standardized and incorporated into initial qualification training experienced Examiners were no longer accompanied into deposition by a Bureau lawyer, but Bureau lawyers were always available on call to assist any deposing Examiner with application of the Code. Eventually clients began to understand that any position taken by a Bureau Examiner was solidly based on marine regulations, codes, standards, and authoritative literature, properly cited to by systems of standard citation in his written Expert Report exchanged with counsel for all sides prior to scheduling of deposition.

  In all the American Admiralty Bureau was named, and provided a written report for the court record, and /or was deposed, or gave oral testimony at trial in over a 1,000 litigations. Of those cases where the Bureau  provided an Examiner as an expert witness of record only 3 resulted in an initial unfavorable settlement or decision against the  counsel who had hired the Bureau. Of those 3 defeated causes, 2 were reversed on appeal and the third was not appealed against the advice of the Bureau. A somewhat smaller number of cases were examined by Bureau personnel and a report offered to the client. The reports not being favorable to the cause of the client, further services of the Bureau were declined, or the Examiner, or Chief Forensic Examiner declined the case.  One of the most important prohibitions of the Bureau's Code of Ethics was the requirement to never accept a case on contingency without the prior and formal permission of the Court. In fact the Bureau never accepted a case on contingency. While the Bureau no longer operates, the Code of Ethics is still quite useful. Any lawyer who understands it may make use of it to check how impeachable his own expert may be; or to check the work of the opposing expert and determine if the opposing expert can be impeached based on investigative or analytic methodology, or adversarial or deceptive presentation.

.AAB CODE OF FORENSIC ETHICS



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FREE READ ON LINE VERSIONS. UP DATED and CREATED UNDER EXCLUSIVE DERIVATIVE RIGHTS-Updated sections in red print ,just scroll down

AMERICAN ADMIRALTY BUREAU, LTD.

AMERICAN ADMIRALTY BUREAU'S COMMENTATOR VOLUME 1 Free Read On Line Version Scroll Down For Volumes 1, 2, and 3. Additional volumes coming 

By Raymond F. Bollinger, Chief Forensic Examiner, American Admiralty Bureau

ISBN:  1-879778-27-0   
Available from Marine Education Textbooks  
http://www.marineeducationtextbooks.com/index.html

 The Commentators are available in the U.S. Supreme Court Law Library collection, The Louisiana Supreme Court Law Library and particular volumes, but not the entire collection in a variety of law libraries.

 Volume 1 introduces the reader to the system of citation for the Commentator series:

"Each essay in this commentator is numbered. The same numbering system begins again with each subsequent volume published. The best way to cite a particular essay is "AAB Com. No._________, Vol_______ (year) ISBN_________

Comment number 1 in volume 1is titled "The Pennsylvania - Reyes Doctrine" and is cited as :
AAB COM. NO1, VOL.1, (1994) ISBN 1-879778-27-0

 The Pennsylvania-Reyes Doctrine provides the rationale on why discovering the level of compliance with regulations, codes, and standards is important in nearly all maritime personal injury and collision cases.

Purpose and Scope :
 This first volume of the Commentator was prepared solely by the American Admiralty Bureau's Chief Forensic Examiner, Raymond F. Bollinger. While this first volume of the Commentator has only one author, it reflects lessons from the total case load of the Bureau from 1988 through 1994. Over these years we have found it necessary on a repetitive basis to articulate the principles described in these essays. Client attorneys who did not understand the principles contained in these essays were at a disadvantage in attempting to utilize the marine regulations, codes and standards supplied by Bureau examiners.

 A knowledge of such principles as the "Pennsylvania -Reyes Doctrine", the 'Walker-Reinhart Doctrine", "the General Duties" etc. is vital to the maritime attorney either seeking the advantage conferred by regulatory  violations by the defendants or defending against such allegations. These essays outline the understanding of the American Admiralty Bureau of these doctrines in very concise form. The principles presented in these essays are presented not as a substitute for legal research into these doctrines but as an aid in starting such research. These essays also outline the official American Admiralty Bureau's understanding of these principles. This understanding is of the nature of navigational expert opinion. Other experts may differ on specific points. Some aspects of the principles presented  herein are in a state of ongoing change. The Commentator is published to reflect the views of the American Admiralty Bureau through the date of publication. Nothing in these essays should be construed as legal advice.
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AAB COM. NO. 1,VOL.1 (1994-as revised 2012) ISBN 1-879778-27 -0

 THE PENNSYLVANIA- REYES DOCTRINE:

 Maritime activity is the subject of extensive federal regulation as well as codes and standards often incorporated by reference into the regulations.  It is relatively rare that an accident or injury in a maritime situation does not involve one or more  violations of such regulations, codes, or standards.
Consequently, when advocating or defending a maritime personal injury case , an attorney can not afford to ignore the various applicable safety statutes, regulations, codes and standards. One of the reasons that such knowledge is critical is referred to as the "Pennsylvania-Reyes Doctrine".

 Violations of marine safety statutes, regulations, or codes and standards incorporated by reference or by application of a statutory general duty clause* usually triggers application of the "Pennsylvania-Reyes Doctrine " by the court. The Pennsylvania [86 U.S. 125 (1873)] was a collision case.  In collisions, this case established a rule that violation of a safety statute shifted the burden of proof to the violator. Moreover, the burden was to not only prove that the violation did not cause the accident but could not have contributed to the accident.  Over time, the U.S. federal courts began to apply the "Rule of the Pennsylvania" to not only collision cases, but to maritime personal injury cases as well. The courts also applied the doctrine to safety regulations as well as statutes. The application of the concept to personal injury cases was most clearly stated in Reyes v. Vantage SS Co. [609 F.2d 140,5th Cir.(1980). Since 1980, the concept that violation of a maritime safety statute or regulation shifts the burden of proof to the defendant employer in a maritime personal injury case has been referred to as the "Pennsylvania-Reyes Doctrine".

 Most admiralty authorities agree that the "Pennsylvania-Reyes Doctrine" generally operates to the plaintiff's advantage in maritime cases by reducing causation requirements and shifting the burden of proof to the defendant. Subsequent applications of the Doctrine (even before Reyes) allowed an "inference of causation on very thin facts" [see Wilkins v. American Export Isbrandtsen Lines, Inc. 446 F.2d 480, 2nd Cir. (1971). Additionally, it appears that when  the Pennsylvania-Reyes Doctrine is successfully invoked under the Jones act, contributory fault by the plaintiff may not be considered.

 Both OSHA and the Coast Guard publish maritime safety regulations.  However, other agencies such as the FCC and the Mineral Management Service (which was disbanded after the BP oil spill in the Gulf of Mexico and whose functions are now administered by the Bureau of Ocean Energy ,Management, Regulation, and Enforcement or "BOEM")  may publish regulations that in some contexts would be considered maritime safety regulations. The "Pennsylvania-Reyes Doctrine" ( by way of the early application of the "Rule of the Pennsylvania) applies to all maritime safety regulations but most especially to Coast Guard regulations. [ see Kennan v. American Dredging CO. ,335 U.S. 426, 78 S.Ct. 394 (1958)] 

 As can be seen from the foregoing discussion, attorneys have a big stake in discovering and dealing with violations of maritime safety statutes, regulations, codes and standards in marine personal injury cases. Not only can such violations trigger application of the "Pennsylvania -Reyes Doctrine" but they can also be used to prove a case of unseaworthiness.  Proof of unseaworthiness may trigger certain effects described in the "Walker Reinhart Doctrine"**, further diminishing the effects of any contributory negligence on the part of the plaintiff (seaman). Unfortunately, marine regulations , codes and standards are not taught in law schools and are only partially codified (and researchable)  in most law libraries. Many regulations, codes and standards deal with marine equipment and operations that most lawyers may not be familiar with. It would appear that "due diligence" will often mandate expert assistance with the review of marine regulations codes and standards,

* see AAB Com. No.3, Vol. 1 (1994) ISBN 1-879778-27-0
** see AAB Com NO. 2, Vol. 1 (1994) ISBN 1-879778-27-0

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Cite As: AAB COM. NO.2, VOL. 1 (1994) ISBN 1-879778-27-0

THE WALKER-REINHART DOCTRINE

 The maritime employer under the general maritime (case) law has a duty to provide  a seaworthy vessel .  when unseaworthiness is alleged  the effects of the "Walker-Reinhart Doctrine" should be considered in many federal jurisdictions. [see Walker v. Lykes Bros. SS Co., Inc.,  U.S. Court of App. 2nd Cir. 1952, case no. 114, Docket  22180 and Robert Reinhart v. United States, U.S. Court of App. 9th Cir., 1972 no. 25039.]  This ''Doctrine'' reflects the apparent trend in the general maritime law to hold seamen to a high order of duty relative to obeying orders and a low order of duty relative to knowing , choosing or employing the safest work methods. The "Walker-Reinhart Doctrine" holds that  a momentary inattention to one's own safety should not be treated as so serious a fault as the breach of duty assumed by an employee for the protection of others, although incidentally for his own benefit too. Both Walker and Reinhart were officers rather than non supervisory seamen. This has affected the application of the "doctrine" in a number of ways and is the cause for court comparison of the duty to look out for one's self with the duty to look out for others. The "doctrine" has not been universally followed by all federal courts.

The distinction the court made between duties to others and duty to look out for oneself has also given rise to what some call the "Walker-Reinhart Defense".   Basically the defense argument holds that if a particular crewman, such as the master or mate , was responsible for correction of a hazard and knew of the hazard and did not take corrective action , he has no cause of action if injured by the hazard. It should be borne in mind , however that Walker and Reinhart were shipping under circumstances with their officer duties well defined. Officers in inland and near coastal trades are not under articles or union contract may not have as clearly defined duties. Neither did the court specifically mention officers.  Argument has been made that any seaman injured as a result of his neglect of personal duty has no cause of action.

 Often this "doctrine" has been construed to articulate the primacy of the seaman's duty to obey orders and the relatively low level of duty , if any, to know and use the safest work methods. The comparison of the relative fault of Walker and Reinhart in their own injuries relative to their duties as officers for the safety of others has somewhat clouded this aspect of the "doctrine". Yet, the holdings articulated in Walker-Reinhart are observable in later cases., including those not involving officers. Another important holding in Walker Reinhart that usually works to the advantage of the the plaintiff seaman is that neither contributory negligence nor voluntary assumption of risk is a defense in action for breach of warranty of seaworthiness.

 Additional holdings of interest in Reinhart include the following:

1. General maritime law imposes an absolute duty upon the ship owner to provide a seaworthy vessel.

2. "The implied warranty of seaworthiness does not mean that the vessel is guaranteed to weather all storms or that it is accident proof, but means that the vessel together with gear and complement of personnel is reasonably fit to complete the intended voyage and also requires that the ship be reasonably fit to enable the crew to perform their duties with reasonable safety. "

3. "The liability resulting from failure to provide a seaworthy ship does not depend upon negligence of the owner. This duty is absolute and thus creates a variety of liability without fault. "

4. The duty to provide a seaworthy vessel is independent of any duty to exercise reasonable care under the Jones Act.

5. " The Chief mate who failed to properly perform his inspection duties and correct related related unsafe conditions in the cargo hold could not recover for his injuries sustained as a result of his breach of duty."

Holdings in Walker include the following:

1. "The 'contributory negligence' which results in the reduction of the amount of recovery for injury  to a seaman is the failure by the injured seaman to discharge a duty owed towards the wrongdoer."

2. A seaman's violation of duty  to his employer which the seaman has consciously assumed as a condition of employment bans his recovery for injury.

3. "The duty of the master in case of damage to his ship is to do all that can be done toward bringing the adventure to a successful termination, to repair the ship if there be a reasonable prospect of doing so at an expense not ruinous and to care for the cargo and not overload the ship.

4. " While it is part of the jury's duty to fix standards of care which circumstances should evoke in any given case under the Jones Act, nevertheless that does not mean that a defendant may never demand that the Judge separate different groups of facts and suggest that they may call for different standards.

5. "Where the master sued the ship owner for injuries sustained when struck by a steel  filing cabinet drawer which had defective catches of which the master had knowledge , and there were a number of ports of call before the accident , and master testified that he had ordered crew to mend catches to no avail, and the judge instructed that the master was bound to take all reasonable steps to see that the ship was kept safe ,refusal to charge that if vessel became unsafe during voyage it was the Master's duty at the next port to see that any repairs ordered was carried out was an error requiring not a directed verdict against the master but a new trial for the jury to decide whether the catches could have mended at the port of call , in view of the mistaken submission of issue of 'contributory negligence'.

Some related cases include the following:

Krall v. U.S.,  1000 WL 192504 (E.D. LA 1990)

W.A. Taylor & Co. v. Griswold and Bateman Warehouse,  742 F.Supp1398 (N.D. 211 1990)

Hensley v. U.S. ,  728 F. Supp. 710 (S.D. Fla.1989)

U.S. Taylor & Co. v Griswold & Quincy Warehouse Co. ,  719 F. Supp. 897, 10 U.CC Rep. Sarv, 2d 970 ( N.D.Ill 1990)

Buckner v. State Boat Operators, Inc.,  880 F. Supp. 238, 1988 A.M.C. 2985 (E.D. LA 1988)

Snow v. Boat Dianne Lynn, Inc.,   664 F. Supp. 30, 1980 A.M.C. 512 (D.Me 1987)

California Home Brands, Inc. v. Ferreira,  871 F. 2d 830, 1989 A.M.C. 2099 (Cal.1989)

Villars Seafood Co. , Inc v. Vest,   813 F. 2d 339, 1987 A.M.C. 1850 (Fla. 1987)

Kendrick v. Illinois Cent. Gulf R.Co. ,  669 F.2d 341 (Miss 1982)

These cases and others citing Walker-Reinhart should be studied carefully.  Walker-Reinhart can be a double edged sword, especially in the case of maritime officers. Adherence and application of the doctrine  in any specific jurisdiction should be carefully checked.  As noted earlier, some jurisdictions do not follow the doctrine. Walker-Reinhart is cited for a variety of the holdings by both plaintiffs and defense.

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Cite As: AAB COM. NO. 3, VOL. 1, (1994 as revised 2012) ISBN 1-879778-27-0

THE GENERAL DUTY TO PROVIDE A SAFE WORKPLACE AND A SEAWORTHY VESSEL.

 The duty of the ship owner or operator to provide a "seaworthy vessel" has existed in the general maritime law (case law) of the English speaking nations for centuries. In the United States after 1970 , a number of cases apparently began to equate the duty to provide a seaworthy vessel with the duty to provide a "safe workplace". [See John R. Buckner v. State Boat Operators, Inc.et al., Civ. A, No. 86-898 USDC, E.D. Louisiana (680 F.Supp. 239) and  Herbert v. Otto Candies [402 F.Supp. 503 (E.D. LA 1975)].

 The appearance of this language in the case law in this time frame reflects language in Sec. 5 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651-678). This blending of the duty to provide a "seaworthy vessel" and a "safe work place" has broadened the meaning of a "seaworthy vessel" in the eyes of U.S. courts. Today a seaworthy vessel is more than a sound of hull and appurtenances, and rigging.  A "seaworthy vessel "is a "safe work place" with proper crew levels, safe access and egress, safe walking and working surfaces and many other considerations previously unthought of. Today , the duty to provide a "safe workplace" aboard commercial vessels is often a matter of quite specific black letter law or regulation.

 I order to determine if a vessel is subject to a black -letter specific duty to provide  a safe workplace , it should be determined whether or not the vessel is "inspected". Uninspected vessels are often subject to the "general duty clause as found in sec.5 of the OSHA Act.  ''Uninspected'' In this sense refers to commercial vessels such as commercial fishing vessels, motor launches carrying six passengers or less, dry cargo barges, dredges and others that do not require pre construction plans approval from the Coast Guard. Such vessels do not require initial inspection and issuance of s ''Certificate of Inspection'' or the periodic formal and regularly scheduled re-inspections that are a condition of maintaining a ''Certificate of Inspection''. Uninspected vessels are defined in 46 USC 2101 (43). In fact, all U.S. commercial vessels are subject to informal boarding and inspection by the Coast Guard at any time. However , the statutory ''general duty'' to provide a ''safe workplace'' contained in OSHA sec. 5 exists only on ''uninspected vessels'' as defined in 46 USC 2101 (43).

 Certain uninspected vessels may be subject to another black letter ''general duty clause" based on location and mission as will be discussed later. ''Uninspected vessels'' are defined in 46 USC 2101 (43) as those vessels not required to be inspected under USC 3301. Most utility type craft carrying fewer than six passengers , dry cargo barges, dredges, derrick barges, and similar work craft are covered by this definition. Tug and towing vessels which were long classified as uninspected recently were brought into an inspected regime.

To determine if a vessel is subject to a black -letter ''general duty '' to ''provide a safe workplace'', its location and mission at the pertinent time must be known. Inspected and uninspected vessels working in support to the offshore oil and mineral industries on waters of the outer continental shelf (OCS) as defined in the OCS Act (43 USC 1331-1356) are subject to the general duty to provide a ''safe workplace'' found in 33 CFR 142.4

 An inspected vessel working in support of the offshore oil and mineral industry on the OCS would be subject to the OSHA general duty clause only when outside the jurisdictional provisions found in 33 CFR 142.4 which is very similar to the which is very similar to the OSHA general duty. Such a vessel can not be subject to both general duty clauses at the same time based on clause 4 (b) (1) of the OSHA Act.

It is desirable from the plaintiff's point of view for one of the black letter "general duty clauses" to apply to a vessel involved in a personal injury rather than the  general duty under the general maritime (case) law.
Both OSHA and the Coast Guard OCS (33 CFR 142.4) general duty clauses contain language requiring that the workplace be kept not only in compliance with regulations but also "free of recognized hazards". Thus, when one of these black letter general duties applies, a "recognized hazard" that would not ordinarily be a statutory or regulatory violation in its own right may be construed as a violation of the applicable general duty statute (OSH Sec.5)or regulation (33 CFR 142.4). Such a holding should usually trigger for the plaintiff the beneficial effects of the "Pennsylvania -Reyes Doctrine* and possibly the "Walker Reinhart Doctrine ** as well. This could have the effect of shifting the burden of proof to the defense and greatly diminish the effects of any contributory negligence on the part of the plaintiff.

* See AAB Com. NO.1, Vol. 1  1994 ISBN 1-879778-27-0 and the Pennsylvania 86 U.S. 125 (1873) and Reyes v. Vantage SS Co. , 609 F.2d 140, 5th Cir. (1980)

** See AAB Com. No. 2, Vol.1 1994 ISBN 1-879778-27-0 and Walker v. Lykes Bros SS Co. Inc., U.S. Court of App. 2nd Cir. 1952, case No. 114, Docket 22180. See also : Robert Reinhart v. United States, U.S. Court of App. 9th Cir., 1972 No. 25039
------------------------------------------------------------------------------------------------------------------------Cites as: AAB COM. NO. 4, VOL 1 (1994 as revised 2012) , ISBN 1-879778-27-0

APPLICABILITY OF OSHA ON UNINSPECTED VESSELS

[Ref: The occupational Safety and Health Actof 1970; P.L.91-596, 84 Stat. 1590, Dec. 29, 1970 (29 USC 651-678) as amended by  Public Laws 93-237, 87 Stat. 1023. Jan 2, 1974 and 95-251, 92 Stat. 183, March 29, 1978.]

 The OSHA Act applies aboard most uninspected U.S. flag commercial vessels on U.S. territorial waters within the boundaries of a state and on outer continental shelf waters when not preempted* and under some circumstances on the high seas. This is especially true and important in the case of section 5 of the OSHA Act known as the "general duty clause" and in the case of OSHA "general industry standards".

 The issue of OSHA applicability on vessels has been contested over the years , the courts first held that clause 4 (b) of the OSHA Act precluded OSHA jurisdiction aboard vessels, OSHA having been preempted by the Coast Guard. At present (1994-2012) this situation is completely reversed aboard uninspected vessels as defined in 46 USC 2101 (43). The leading cases re-interpreting OSHA clause 4 (b) (1), which was designed to keep employers from being caught in a cross fire between redundant regulatory agencies, were the following:

1. Donovan v. Red Star Marine Services: 739 F.2d 774 (2nd Cir. 1984) ,cert denied, 470 US 1003 (1985)

2. In re Inspection of Norfolk Dredging Co. : 783 F.2d 88, Cert. denied, 107 S.Ct. 271 (1986)

 These cases recognized concurrent OSHA / Coast Guard jurisdiction aboard uninspected vessels. Relying in part on the legislative history of the OSHA  Act, the court found it within its jurisdiction to determine whether or not the authority granted a federal agency by a specific statute was broad enough or intended to include the regulation of occupational safety and health without diminishing the particular area regulated by the other agency (see Leg, Hist. at 1223).  The legislative history also addressed the question as to whether or not a competing agency exercised jurisdiction.

 Before the maritime cases cited above were heard, the court had already affirmed the concept of concurrent jurisdiction  between OSHA and other Federal agencies when the competing agency either lacked full statutory authority over occupational safety and health or had failed to exercise the authority in Organized Migrants in Community action, 520, F.2nd 1161 (1975).

 Early attempts were made by some industries to claim total industry exemption when an agency other that OSHA had regulated some but not all occupational safety and health areas. This argument was soundly refuted in Southern Ry Co. v. Occupational Safety and Health Review Comm. 539 F.2d 335 (1976).

 After "Red Star", the Coast Guard and OSHA entered into an interagency memorandum of understanding (Federal Register 18 March 1983 at p. 11550) dealing with "uninspected vessels" open to concurrent jurisdiction. Prior to this interagency agreement , OSHA operated at least one proactive inspection program on "uninspected vessels" [see OSHA (Seattle) Regional Inst. CPL 2.6 dated 5-19-82]. After March 1983 the following advice was provided by the Chief Counsel of the Coast Guard in the Coast Guard Marine Safety Manual (COMDTINST 16000.7)

 "Note: on ubcertificated * commercial vessels such as towing** and commercial fishing*** vessels, both DOL**** and the Coast Guard have jurisdiction. Lifesaving, firefighting and navigational equipment and matters involving ventilation requirements are under Coast Guard jurisdiction"

 * "Uncertificated" refers to certificates of inspection, the lack of which is a key element in the definition of an uninspected vessel" as defined in 46 USC 2101 (43).

** Today (2012) Towing vessels are now under a formal CG inspection program

*** Commercial fishing vessels are now addressed in a number of Coast Guard Navics (Navigational and Vessel Inspection Circulars).NAVIC is an agency action only, lacking the full regulatory process. Presently NAVICS are not considered to constitute comprehensive regulation of occupational safety and health. Commercial fishing vessel NAVICS include but are not limited to NAVIC 13-91 dealing with third party examination of fishing vessels, NAVIC 7-93 dealing with safety instructions and courses, NAVIC 5-86 dealing with voluntary vessel safety standards. The continuing activity of the Coast Guard in this area may well predict future comprehensive fishing vessel occupational safety and health regulations. 

**** DOL refers to Department of Labor and this is an indirect reference to their agency OSHA.

 As can be demonstrated by the above -referenced cases and authorities, OSHA has jurisdiction aboard " uninspected vessels" as defined in 46 USC 2101 (43). This situation is likely to continue indefinitely although the list of specific vessel types affected is likely to change over time. This is indicated by the growing attention the Coast Guard is paying to the safety and health issues in the commercial fishing industry.

 However, jurisdiction of the agency and application of specific regulations are two different things.
Generally , the OSHA "General Duty Clause" (sec. 5 of the OSHA Act) and many "general industry standards"will apply aboard uninspected vessels. Longshoring and ship building, breaking, and repairing regulations will not apply to vessels not engaged in these activities. This is the real significance of Kopczyanski v. the Jacqueline, 742 F.2d 555 (9th cir. 1984). This case is often cited to argue that OSHA regulations do not apply to Jones act seamen.  Such an argument overstates the holding in Kopczynski.  In Kopcznski, the court relied heavily on the scope and applicability of specific regulations cited by the plaintiff which were applicable to harbor workers and longshoremen. The plaintiff had apparently cited a violation of 29 CFR 1910, the general regulations. Subsequent decisions have questioned the validity of Kopczynski when applied to fact situations involving general standards. Kopczyanski is widely believed to uphold only the finding that longshoring regulations do not apply to Jones Act seamen. In the view of the American Admiralty Bureau,Ltd. , such a holding should be limited to situations in which the vessel is not engaged in longshoring operations, longshoring regulations apply aboard  when an on board situation is addressed by the regulations. The Jones Actseaman on the vessel may not be the intended protected class of worker, but the regulations may provide a safety margin to all persons aboard including the intended workers, seamen, and visitors.

Additional challenges to the applicability of the OSHA general duty clause and general regulations aboard uninspected vessels may be based on the location of the vessel at the time of a personal injury. Section 4 of the OSHA act states in part :

" This Act shall apply with respect to employment performed in a workplace in a state, the District of Columbia, the Common Wealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Wake Island, Outer Continental Shelf Lands defined in the Outer Continental Shelf Lands Act....."

 Often when an uninspected vessel is outside of the Territorial Seas, an argument is made that OSHA should not apply aboard because the worksite is no longer " within a state, the District of Columbia," etc..  It should be noted that the territorial waters of individual states remain fixed at 3 miles with the exceptions of Texas and Florida. However, the U.S. Territorial Sea now extends 12 miles by Presidential Proclamation No. 5928 ( F.R. Vol. 54 #5 p. 777, Mon. Jan. 9, 1989).  Arguments have been made as late as 1994 to exclude OSHA jurisdiction aboard certain uninspected vessels based on their location " beyond the three mile territorial sea". To be valid more than the "territorial sea" , which now extends to 12 miles, must be invoked. The correct argument based on section 4 of the OSHA Act should address the vessel as a worksite outside of any state".  Presidential Proclamation No. 5928 extended the Federal Territorial Sea to 12 miles offshore but expressly did not change the boundary between state and federal waters which , with two exceptions, remains at 3 miles offshore. However, even if the more correct argument is applied, a vessel in some locations along the U.S. Coast may be as far out as 200 miles and still be on the ''OCS'' as defined in the OCS Act and included in sec. 4 of OSHA.  An argument can also be made that it was the intent of the OSHA act "to provide"every American with a safe work place" if the territorial sea now extends beyond state Waters the duty  should extend to the limits of U.S. territory. The counter argument is that the Presidential Proclamation expressly stated that the extension of the territorial sea would not affect U.S. domestic law. The counter argument to this argument for accidents occurring beyond 3 miles from shore but less than 12 miles is that the accident site is now on OCS waters included in sec.4 of the OSHA Act, within U.S. Territorial waters and within the legislative intent of the OSHA Act.

 Regardless of how the courts ultimately regard such arguments , another argument against OSHA jurisdiction on the OCS will often be made based on section 4 (b) (1) of the OSHA Act. This argument is simply that the Coast Guard has preempted OSHA  by publishing occupational safety and health regulations for the OCS. However , unless the involved vessel was engaged in support of the offshore oil and mineral industry, this argument is probably too broad.

 The Coast Guard promulgated "Occupational Safety and Health Regulations" for the OCS in title 33 CFR 140-147 probably precluding OSHA jurisdiction in the offshore oil and mineral industry. However, it appears section 140.3 of these regulations limit their applicability aboard vessels unless such vessels are engaged in OCS activities as the term "OCS activities" is defined in 33 CFR 140.10.  This section defines "OCS activity" as as "any offshore activity associated with exploration for or development or production of the minerals on the outer continental shelf." Thus it appears that a reasonable argument can be made that an uninspected vessel not operating in support of OCS activities" but transitting the OCS waters is still subject to OSHA jurisdiction.

 Finally it appears that OSHA itself operates on the theory that if a vessel has a significant connection to a state , their jurisdiction carries all the way to and upon the high seas. In secretary of Labor v. Alaska Trawl Fisheries, no. 89-1017 (OSHC 1989) the OSHA Administrative Law Judge noted.

"The respondents, final argument in support of its motions to dismiss is that activity of the vessel was conducted on the high seas, outside the jurisdiction of any state and as a result , there is no (work)**place within a state. While catching and processing fish took place on the high seas, the facts disclosed that ancillary activities were carried out in the Port of Dutch Harbor, Alaska. Thus the ship made trips to port to deliver processed fish, to pick up fuel and supplies to change crews and to undergo repairs, all of which functions were part and parcel of the respondents' business.

 Insomuch as some of the work took place in port, OSHA had a jurisdiction over this employment."

 It appears that in "Alaska Trawl Fisheries" the judge applied a doctrine comparable to that of "constructive presence" found in international maritime law and U.S. customs law. This is an old and well established principal. From the above and foregoing , it should be clear that OSHA generally has jurisdiction aboard uninspected vessels subject to a few exceptions. It should also be apparent that the exceptions change over time and that this issue should always be carefully researched.

* See AAB Com. No. 3, Vol.1 (1994) ISBN 1-879778-27-0 for a fuller discussion of the general duty to provide a safe workplace and a seaworthy vessel and applicability of USCG Safety and Health regulations.

** (work) inserted by the author of this commentary.

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CITE AS: AAB COM. NO. 5, VOL. 1 (1994- as revised 2013) ISBN 1-879778-27-0

THE TERRITORIAL SEA:

 The "territorial sea" is a term in international law that denotes those portions of the ocean under the legal control of the adjacent coastal state.  The "territorial sea" is distinguished from the "high seas" and "internal waters"*. the "high seas" are those portions of the oceans not under the control of any individual nation state and subject to international law. "Internal waters" are those waters of the adjacent coastal state inland from the headlands or breakwaters. The territorial sea is physically part of the ocean. The sovereignty* exercised by the adjacent coastal state over the territorial sea is tempered by several recognized servitudes* in international law based on the physical connection between the high seas and the territorial sea and the realities of surface navigation. The most important of these servitudes is the right of innocent passage*

 The breadth* of the territorial sea  is a subject of ongoing international controversy. The underlying enduring principle of maritime international law is that the territorial sea should be a relatively narrow band of ocean adjacent to the coastal state.  For centuries, 3 miles from the coast had seemed acceptable to most coastal states; in the second half of the twentieth century, 12 miles became more the norm. There were highly controversial and unrecognized claims by some nations of up to 200 miles. In the twenty first century most seafaring nations are signatory to the latest international convention on the law of the sea which establishes a 12 mile territorial sea limit where available and a negotiated limit where coastal states don't have that much space available, as in states on opposite sides of straits and narrows where the right of innocent passage is assured to the shipping of all nations. At this writing the United States has not signed or ratified the latest international convention on the law of the sea but has adopted the twelve mile territorial sea limit by Presidential proclamation.

 The United States and the nations signatory to the latest international convention on the law of the sea recognize Exclusive Economic Zones (EEZs)* as far from the shore of the adjacent coastal nation as 200 miles , in some cases where geological data proves the extension of the outer continental shelf extends farther out to sea an extended exclusive economic zone is recognized. An exclusive economic zone (EEZ) is a very different claim than a claim of inclusion in an adjacent coastal state's territorial sea. Within an exclusive economic zone , the surface navigation rights of ships of all nations is assured and if disturbed by exclusive economic activity such as oil drilling , such disturbance is minimal  and done only after due navigational notice. Most claims of exclusive economic zones * are based on bottom resources such as mineral rights and benthic fisheries, though other surface and water column activities such as offshore wind farms and experimental units for developing energy from thermal differences in the water column are starting to appear.
The claim to exclusive bottom resources rights are based on the resources being located on the outer continental shelf. The legal theory is that the outer continental shelf is the submerged physical extension of the adjacent coastal state's territory. Under this theory as ocean levels change, the adjacent coastal state's territorial sea measured from the low water mark changes. The adjacent coastal state's exclusive bottom rights remain constant to the edge of the continental shelf; which all sounds good in theory except that the shelf ends in places in an easily identifiable escarpment and in other places gently rolls into a continental slope. Where does the slope end and the abyss begin? At present, this is an unsettled point of international law. However , most states exercising a 200 mile exclusive economic zone have codified some sort of boundaries to their zones in national law. The most notable exception to this norm is the Russian arctic Ocean claim, where the end of the Russian outer continental shelf according to their claim extends under the North Pole with Russia claiming an expanded exclusive economic zone of most of the arctic ocean. This claim is not recognized at this time by the other nations encircling the Arctic ocean, but the dispute continues as Russia continues to perform oceanic geological research in support of her claim.

 In  the United States , this exclusive economic zone is described in the "OCS Act" {Outer Continental shelf Lands Act , Public Law 83-212,  67 stat.462,  August 7, 1953  (43 USC 1331-1356), as amended by: Public Laws 93-627, 88 Stat. 2126 January 3, 1975; and  95-372, 92 stat. 629, Sept. 18, 1978.] as follows:

 "(a) The term 'outer continental shelf ' means all submergedlands lying seaward and outside of the area of lands beneath navigable waters as defined in section 2 of the Submerged Lands Act ( Public Law 31, Eighty -third Congress, first session), and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control."

 The term "navigable waters"is often interpreted to mean "navigable waters of the United States" as variously defined in U.S. law; but section 2 of the Submerged Lands act has to make a distinction.  The OCS lands are outside the "navigable waters of the United States". Since some of the "navigable waters of the United States" overlie state water bottoms, the "the subsoil and and sea bed " can not "appertain to the United States" but rather to an individual state. Much of the OCS lands are situated under the "high seas", the waters being an international navigational right of way even if the U.S. has the exclusive economic right to exploit the sea bottom minerals and benthic fisheries. Thus the OCS lands as described in the OCS Act are distinguished from the submerged lands underlying the "territorial sea " and the "internal waters" as defined in international law and distinguished from seabeds underlying the "navigable waters of the United States"as used in U.S.national law.

 The exact limit of the U.S. Exclusive Economic Zone (EEZ) is somewhat indistinct under the act but generally the exclusive rights of an EEZ are enforced and exercised out 200 miles from the coastal mean low water mark (except in the Florida Straits where only 90 miles separate the U.S. from Cuba and in the vicinity of the Bahamas where in places there are less than sixty nautical miles between the U.S. mainland and some of the Islands).  If an area of the adjacent coastal sea is shown as a numbered lease site by the U.S. Bureau of Ocean Energy Management Regulation and Enforcement , this is a clear indication that the area has been determined to be OCS waters under the OCS Act.

 So generally the U.S. exclusive economic zone can be thought of as roughly 200 miles seaward of the mean low water mark by operation of the OCS Act. The territorial sea is now declared to be 12 miles from the mean low water mark by the Presidential Proclamation of December 28, 1988 (Presidential Proclamation No. 5928, Federal Register Mon., Jan.9 1989 Vol. 54 #5 page 777).
This proclamation however was intended to affect the breadth of the territorial sea only for international purposes.  Nothing in the Proclamation was intended to affect or extend geographic
applications of the then current U.S. domestic law Consequently state, as opposed to Federal water bottoms , with their associated mineral rights remain as fixed prior to December 28, 1988. These boundaries are generally fixed at three miles from the mean low water mark with a few exceptions such as Texas and Florida which have 12 mile limits. Such exceptions are generally traceable to foreign treaties related to the admission of such states.

 Knowing where the OCS lands are and the boundary between  Federal OCS jurisdiction and state jurisdiction is important in marine resource and environmental disputes. Distinguishing between the enforcement authorities conferred by international law based on location in the territorial sea or the high seas over OCS submerged lands (the exclusive economic zone) is important to Coast Guard and naval authorities. However, such distinctions are generally meaningless in collision cases. The sole determinant as to whether the Inland Rules ** to Avoid Collision or the International Rules to Avoid Collision** apply is based on a vessel's position relative to the "line of demarcation". The "line of demarcation" between the Inland Rules (33 U.S.C. 2001-2038, 2071-2073) and the International Rules (33 U.S.C. 1601-1608 is fully described in 33 CFR 80. While 33 CFR 80 gives the specific landmarks and all exceptions to the general rule, generally this line is drawn from headland to headland around the United States. The line of demarcation between collision avoidance rule systems is generally well inshore of the seaward boundary of the territorial sea.

*See American Admiralty Bureau's Guide to the Enduring Principles of International Law, Chapter 3, ISBN 1-879778-28-9

** See American Admiralty Bureau's Lawyer's Guide to the Navigational Rules, page 113, ISBN 1-879778-17-3.

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CITE AS:  AAB  COM. NO. 6, VOL.1 (1994 as revised 2013)  ISBN 1-879778-27-0

ALLISIONS 

In maritime law , a collision occurs when two vessels unintentionally come into contact.By contrast , an allision *occurs when a vessel strikes a fixed object. Technically speaking, conning officers and pilots collide with other vessels and allide with piers, bridges,piles and other fixed objects.  Generally in an allision a heavy burden of proof falls on the conning officer or pilot who is presumed to be at fault.  This presumption at first glance appears fair since bridges, piers, and breakwaters can't grow wings and fly into the path of oncoming boats. However, the resulting burden of proof levied on the pilot in an allision is refutable.  there are some rules for fixed objects  in the water. In an allision , attorneys should attempt to answer the following questions before assuming fault rests entirely with the vessel's pilot or other conning officer.

1. Was the allision object charted and reported?

Pilots and conning officers must rely on navigational charts and references to learn of navigational obstructions. Few objects may be established in U.S. waters without Corps of Engineers and or state permits. In federal navigable waters, the the permit system and the National Oceanic and Atmospheric Administration (NOAA) and other charting authorities are organized for reporting purposes. Man-made navigational hazards which are properly permitted are also reported, and therefore generally noted on navigational charts. Once in a while a properly permitted obstruction is not charted. This is usually a decision by NOAA based on chart scale and similar considerations . an object may be charted or uncharted without being permitted or reported. NOAA has numerous other ways of gathering chart information. An uncharted object may still be reported in the reference book known as the Coast Pilot.

2. Has the allision object been permitted?

Charted, reported or not , most man-made objects in the marine traffic way must be permitted by the Corps of Engineers, the Coast Guard and state agencies. It would be very difficult to prove that an unpermitted object was up to applicable standards relative to location, construction, and proper workings, much less properly reported.

3. Has the object been constructed in compliance with its permit requirements?

In order to find out if the object has been constructed in compliance with its permit requirements ?
In order to find out if the object has been constructed in compliance with its permit requirements the following questions must be answered.

  Is the object located where permitted?

  Is it constructed as permitted relative to dimensions, materials, etc.

  Has it been maintained as required?

4. Was the allision object marked adequately?

 On U.S. waters, all owners of ''permitted '' obstructions must apply to the U.S. Coast Guard for ''marks''.  ''Marks'' refers to lights, whistles, bells and similar devices designed to indicate an object's presence in the waterway. The Coast Guard first determines if ''marks'' are necessary based on an analysis of the object's site relative to proximity to vessel traffic ways and the amount and type of traffic. Then if marks are deemed appropriate, the Coast Guard will approve proposed marks that conform with the minimum requirements found in the Code of Federal Regulations.

Allision* objects are generally either charted and reported or not. They are generally either permitted or not (though there are pitfalls here!).  Most disputes arise over the adequacy of maintenance or the adequacy of marks. In these areas, the advocate must rely on the navigational expert and there are many areas in which honest experts will differ markedly in opinion. Experts may also be needed in the areas of permits.


 Many potential navigational obstructions may be "permitted"by "nation-wide" or ''regional general permits''.  These little or more difficult to locate paper trails. Expert assistance is usually needed to confirm or disprove permitted status. The regulations from which these questions were derived are found in title 33 Code of Federal Regulations Parts 322 and 64, 66, and 67.

 Coastal zone erosion, changes in sea level over the years, and saltwater intrusion caused by marsh channelization has generated a new type of allision problem. We refer to this unique problem as the "erosional allision". The "erosional allision" is most frequently seen along the Louisiana and Texas coasts and to a lesser extent in other areas of the east coast with coastal marshes and barrier island geography. In this type of allision a vessel strikes an object originally built on dry land or thick marsh. Due to marsh or bank erosion , the object ends up in a navigable traffic way, often without the knowledge of the owner.

 In such a case, the allision object fails all of the questions outlined earlier. What was the duty of the owner of such an object as the land around it changed? Who is responsible for reporting, marking, or removal once an object is engulfed by navigable waters? Most such questions have not yet been answered definitively at appellate level. But some trends are important to note>

 The Coast Guard appears consistent between districts in their view that owners of such objects have a duty to report the change in status and submit to the permit and reporting and marking processes once the object is submerged. State laws vary but often title to the new water bottom shifts to the state. What effect does this have on responsibilities for structures once considered real estate? where erosion is aggravated by man-made processes of known origin such as dredging , an owner may be able to subrogate allision claims at least in part to the identifiable human agents of erosion.

 "The allision appears simple on its face. after all; bridge fenders, piers, breakwaters , and mooring buoys don't 'attack' boats. However , a case can often be made that they can be constructed and managed in such a way as to 'lay in ambush' for even prudently operated vessels. Fail to answer any of the questions outlined here and a 'simple allision' can turn into quite a surprise."

* See ''Hazards at Sea, Allision: a Rebuttable Burden of Proof" by R.F. Bollinger , Experts at Law Magazine July -August 1990.

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CITE AS:  AAB COM. NO. 7, VOL.1 (1994-revised 2013) ISBN 1-879778-27-0

SAFE SPEED

 Speed is an issue in every maritime collision, allision, grounding and wake damage case. It sometimes becomes an issue in personal injury cases such as slip and falls aboard vessels. In all cases, a safe speed is defined in rule six of both the International and Inland Rules [ Inland 33 USC 2006, Int'l. 33 USC 1602 (6) Text identical in both sets of rules]:

"Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances 
and conditions."

"In determining a safe speed the following factors shall be among those taken into account:

(a) By all vessels

          (i) the state of visibility 
         (ii) the traffic density, including concentrations of fishing vessels or any other vessels;
        (iii) the maneuverability of the vessel with special reference to stopping distance and turning   
              ability in prevailing conditions;  
       (iv) at night the presence of back scatter of her own lights;
         (v) the state of the wind, sea, and current, and the proximity of navigational hazards;
        (vi) the draught in relation to the available depth of the water.

(b) Additionally by all vessels with operational radar:

     (i) the characteristics, efficiency, and limitations of the radar equipment;
    (ii) any constraints imposed by the radar range scale in use;
   (iii) the effect on radar detection of the sea state,weather, and other sources of interference;
   (iv) the possibility that small vessels, ice, and other floating objects may not be detected by radar 
            adequate range;
    (v)  the number , location, and movement of vessels detected by radar;
   (vi)  the more exact assessment of the visibility that may be possible when radar is used to 
           to determine the range of vessels or other objects in the vicinity.

 As one might suspect from a reading of the rule, the case law reflects that the test of a safe speed is relative to the circumstances of the case [see Gele v. Chevron Oil Co., 574 F.2d 243 (5th Cir. 1978)]. The various circumstantial bench marks are laid out in considerable detail in the rule. These in turn are supplemented by a few well-established points of stare decisis such as:

1. Where damage from a vessel's wake is foreseeable, the vessel generating the wake must reduce speed or take other evasive action to avoid wake damage or liability results. [ See Indian Towing Company v. The Lyons Creek, 187 F. Supp. 774 (E.D. La. 1960) aff'd 293 F.2  107 Cert. den. 369  U.S. 861, 82  S. Ct. 951, 89 L. Ed. 2d. 19]

2.  Larger vessels have a duty for the safety of smaller vessels from their wake. [ See Anthony v. International Paper Company , 289 F.2d 574 (4th Cir. 1961), and Bernert Towboat C. v. USS Chandler (DDG 996), 666 F. Supp. 1154 (D.C. Ore. 1987).]

3. The fact of injury from a wake establishes prima facie liability on the vessel creating the swell. [See West Indian Fruit and S.S. Co. v. Raymond 190 F.2d 673 (5th Cir. 1951) ].

4. Excessive speed is a statutory violation and triggers the Pennsylvania Rule.* [Alamis v. Chevron Transp. Corp., 660 F. Supp. 1123 (S.D. Miss 1987), and Bernert Towboat Co. v. USS Chandler (DDC 996), 666 F.Supp. 1154 (D.C. Ore. 1987) ].

 Based on this understanding of the definition of "safe speed" the Bureau's experts have deemed a wide variety of speeds under a wide variety of circumstances as "safe" or proper.  The Bureau's position has been throughout its case history identical to the court's. a safe speed is determined by the totality of the circumstances. There is no way to determine that a given speed is safe or unsafe without a through review of all surrounding circumstances.

* See AAB Com. No.1, Vol.1 (1994 as revised 2012-2013) ISBN 1-879778-27-0
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CITE AS:  AAB COM. NO. 8, VOL.1  (1994 as revised 2013), ISBN 1-879778-27-0

A PROPER LOOKOUT

 Any collision or allision* presents the question of proper lookouts. The fact that a collision or allision occurred does not establish a prima facie case of inadequate lookouts.

 The lookout requirement is found in rule 5 of both the Inland Rules and International Rules [ Inland : 33 USC 2004, Int'l 33 USC 1602(4) ]. For both rules the text is identical:

 "Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate to the prevailing circumstances and conditions so as to make a full appraisal of the situation and the risk of collision."

 All vessels at all times while underway , even small single -handed vessels, must post a lookout. [ See Granholm v. TFL ., Exp., 576 F. Supp. 435 (S.D. N.Y. 1983) and McKeel v. Schroeder, 215 F. Supp. 756 (N.D. Cal. 1963)].  However the adequacy of the lookout is a question of fact under the totality of the circumstances. [See Cenac Towing Co. v. Keystone Shipping Co., 404 F.2d 698 (5th Cir.1968), and Pinto v M/S Fernwood,507 F.2d 1327 (1st Cir. 1974) ].

 A vessel at anchor however, out of the navigation channel need not post a lookout. [See Hutton v. Walter G. Houghland, Inc., 321 F.2d 595 (5th Cir.1963).]

 A lookout must be competent.  Competency varies with the circumstances of the case. On larger commercial vessels it has been held that lookouts must be persons of suitable experience and have no other duties while actually and vigilantly employed on lookout watch. [ See Complaint of Flota Mercante Grancolumbia, S.A. ,  440 F.Supp. 704 (S.D. N.Y. 1977)]. However on small vessels the issue must be evaluated realistically in light of all circumstances. [ See Capt'n Mark v. Sea Fever Corp., 692 F.2d 163 (1st Cir.1982)]. In some cases, particularly aboard smaller vessels, interrelated and overlapping duties such as keeping track of the vessel's position do not violate the rule against other duties. [See Complaint of B.F.T. No. Two Corp., 433 F. Supp. 854 (E.D. Pa. 1977].

A lookout must be properly located, usually near the bow but proper location is a circumstantial test. [ See Moran Towing & Transp. Co. v. City of New York, 620 F.2d 356 (2d Cir. 1980) and Oriental Trading & Transport Co. v. Gulf Oil Corp., 173 F.2d 108 (2d Cir. 1989) cert. den. 337 U.S. 919, 69 S.Ct. 1162, 93 L. Ed. 1728]. 

In an allision * that is a collision with a stationary object , failure to maintain a lookout is prima facie
presumed. [ See Corporacion Insular de Seguros v. U.S. , 646 F. Supp. 1230 (D.C. P.R. 1986) ]. However the presumption is rebuttable.

 Because of the circumstantial nature of tests for proper lookout , the American Admiralty Bureau has held in its various related cases that a failure to perceive a hazard does not establish a prima facie presumption that the lookout was inadequate. Given a properly trained and positioned lookout exercising due diligence and the basic facts of human night vision, depth perception, and color vision, a proper lookout standing s diligent watch can still fail to perceive certain hazards.

* See AAB Com. No.6, Vol.1 (1994 as revised 2013), ISBN 1-879778-27-0 and AAB Lawyer's Guide to the Navigational Rules, p.12, ISBN 1-879778-17-3.
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AAB COMMENTATOR VOLUME II

FREE ON LINE VERSION, UPDATED



AMERICAN ADMIRALTY BUREAU, LTD.


AMERICAN ADMIRALTY BUREAU COMMENTATOR VOLUME 2


PURPOSE and SCOPE

The first volume of THE COMMENTATOR was prepared solely by the American Admiralty Bureau's Chief Forensic Examiner , Raymond F. Bollinger. While the first volume of THE COMMENTATOR had only one author, it reflected lessons from the total case load of the Bureau from 1988 to 1994. Over the years the Bureau had found it necessary on a repetitive basis to articulate the principles described in Vol.I.  Client attorneys who did not understand the principles contained in Volume I were at a disadvantage in attempting to utilize the marine regulations, codes and standards provided by Bureau Examiners.

 A knowledge of such principles as the "Pennsylvania-Rinhart Doctrine", eyes Doctrine", the "Walker -Reinhart Doctrine", the "General Duties",etc is vital to the maritime attorney seeking the advantage conferred by regulatory violations by defendants, or defending  against such allegations. The essays (numbered comments) of Volume I outlined the understanding of the american Admiralty Bureau of these doctrines in very concise form.  The principals presented in Volume Iwere presented not as a substitute for legal research into the doctrines but as an aid in starting such research. The numbered comments of Volume I also outlined the American Admiralty Bureau's institutional understanding of these principles. This understanding is of the nature of navigational opinion. Other experts may differ on specific points. Some aspects of these principles are as yet unsettled in law. Other aspects of these principles are in a state of ongoing change. THE COMMENTATOR series is published to reflect the views of the american Admiralty Bureau through the date of publication or revision. Nothing in this series should be construed as legal advice. 

 This volume, Vol.II updates Vol.I and adds new principles derived from past case work, research, and publications. This volume was originally prepared by the Bureau's Chief Forensic Examiner , aided this year by Director Examiners Capt. James A. Wilson USCG (Ret.) and CMDR John Deck USCG (Ret.). This volume was updated and revised by Ray Bollinger in 2013. Key principles articulated in this volume include tow powering and configuration and the manning of towboats. Additionally the applicability of OSHA aboard uninspected vessels , the subject of AAB COM.NO.4 VOL.I (1994), ISBN 1-879778-27-0, has been modified somewhat by legal changes in 1994-95. While Vol.II followed Volume I by only a year we do not anticipate The Commentator to be an annual publication. The Commentator series is meant to report American Admiralty Bureau Institutional positions as they actually develop.  1995 was a rare year compared to the years between 1988 and 1994 due mostly to the emergence of tow powering and configuration, and towing vessel manning as legal issues. This is largely the result of the AMTRAC and St. Claude Ave. (New Orleans) bridge accidents . Moreover it's rare for the Bureau to publish institutional positions without more extensive case experience than we have had with these issues. However  in the case of the towing industry issues we have published studied positions on these issues in the industry media. These published positions underwent institutional review before publication and will affect our positions in litigation on these matters in the future. Consequently we are obligated to publish formally these views without delay.

 The third essay (numbered comment) in this volume is the result of having to choose between conflicting proposed standards in the towing industry debate. There is nothing new in this essay, it simply documents what the american admiralty Bureau has always done under such circumstances based on the National Forensic Center's Code of Ethical and Professional Conduct. However since an example occurred in this volume we felt documenting our position here was appropriate. Moreover it saves the reader concerned with this issue referral to another publication.


UPDATES TO VOLUME I


Update: AAB COM. NO.4 VOL.I (1994) ISBN 1-879778-27-0
 The applicability of OSHA aboard uninspected fishing vessels continues to modified as the Coast Guard issues requirements applicable to this class of vessels. As discussed in AAB COM.4 Vol.I (1994) the OSHA Regional Office in Seattle was the lead in asserting OSHA applicability aboard uninspected fishing vessels. As the Coast Guard continues to regulate occupational safety and health aspects of the commercial fishing industry OSHA continues to modify and adapt their previous position as detailed in AAB COM.4, Vol. I (1994). Once again much of the lead is coming out of the Seattle Regional Office of OSHA. Editors note 2013: Since the up date you are now reading there has been much incremental development in the issue of OSHA applicability aboard "uninspected vessels". More classes of vessels have moved into the "inspected realm", and the Coast Guard has addressed a number of safety issues on commercial fishing vessels shrinking the areas addressed bu OSHA and this incremental progress of growth in Coast Guard regulation of occupational safety and health conditions continues. We reprinted the original "Comment" in Volume 1 and this update as it appeared with the thought that it might be helpful to researchers interested in the regulatory history of the issue. Basically we have stopped tracking the issue in the micro sense. In the macro sense we are sure that the slow, incremental growth of Coast Guard regulation of maritime safety and health conditions will continue and we seriously doubt that OSHA will be completely off of operating vessels before mid to late century, if then. 

After a couple of related cases appeared this year both the OSHA Seattle Regional Office and OSHA Headquarters, Washington issued letter opinions indicative of the following:

 1. The exclusion of "crew members"from application of long shoring regulations is limited . The exclusion of only applies to crew members actually involved in the navigation of the vessel. Despite the fact that a processor was a Jones Act seaman, he was not an excluded crew member for the purpose of application of the long shoring regulations if he was employed in operations typical of long shoring.

 2. OSHA defines "Crew members" in a limited way. OSHA excludes from this category workers, otherwise considered "crew members" who are not engaged in the navigation of the vessel.

Based on observable cases so far it is apparent that certain OSHA regulations will be held applicable , at least for certain workers, aboard uninspected commercial fishing vessels for a considerable time into the future. OSHA has been basically preempted in areas that are the subject of Title 46 CFR part 28 . The entry of the Coast Guard into the regulation of this class of vessels ,including the promulgation of occupational; safety and health regulations has not caused the sudden or complete removal of OSHA from the field. The progression of the application clause 4(b) (1) of the OSHA Act in the case of uninspected commercial fishing vessels appears to be in an evolutionary mode. The American Admiralty Bureau expected in 1995 that residual but shrinking OSHA applicability aboard this class of vessels would continue "for an extended time into the foreseeable future". In 2013 this is also the prognosis of American Admiralty Information Systems as the Coast Guard slowly addresses commercial fishing occupational safety and health.

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CITE AS: AAB COM. NO.1, VOL.II (1995-updated 2013) ISBN 1-879778-38-6.

STATUS OF THE TOWBOAT OPERATOR LICENSE:

Editors Note (2013):When this comment was written in 1995 the U.S. Towing industry deck licensing program was in a state of transition. In the 1970's the industry had seriously resisted the imposition of licensing of its pilot house personnel by the U.S. Coast Guard. The ascendancy of the diesel engine as the normal form of towing industry propulsive power had broken the back of the organized licensed masters, mates, and pilots of an earlier era whose license structure had evolved in the era of steam engines and whose supporting laws referenced steam propulsion in such a way that absent a steam engine the law in fact allowed the companies themselves to appoint their own captains, mates, and pilots as they pleased without any third party competency checks. This resulted in a series of horrific accidents that fueled a drive to establish Coast Guard examination of towboat navigating personnel regardless of engine type. Towboat owners fought the re-imposition of the traditional masters ,mates, and pilots structure because of the higher cost of fully licensed personnel. Owners put forward a "short leash" argument stating that tow boats operated in close proximity to shore in radio contact with dispatchers and that much of the knowledge required of traditional masters, mates, and pilots was not needed by towboat "operators" since services were readily available from shore. Eventually the Coast Guard proposed and passed into regulation a "Towboat Operator Licensing Law" creating a minimal license for "Operators" requiring only minimal testing in the rules to avoid collision, a very limited navigation section and minimal safety subjects. Towboat operator "endorsements" at first were simply added to existing Master, Mate and Pilot Licenses as they came up for renewal with no testing requirements, new applicants who had not previously acquired an officer's license could take the limited examination and become licensed as "Operators". Owners weer free to hire either licensed officers or operators as long as their pilot house was manned by someone licensed by the U.S. Coast Guard.

 The owners almost completely avoided hiring the better trained and more expensive masters mates, and pilots and soon the industry pilothouses were predominantly manned by the newly licensed "Operators". Safety did not improve much. In one particular bridge allision in Florida the tow boat owners tried to argue that they should have been allowed to limit their liability because the accident wasn't within their "privity and knowledge" since it was attributed to "pilot error" and they, after all, had hired a "licensed professional "pilot" ,third party competence certified by the U.S. Coast Guard. The response by the State of Florida was to hire an actual Master Pilot expert from the American Admiralty Bureau  who first articulated this argument:

     "An "Operator" is to a 'Pilot" as a paralegal is to a lawyer. They have many skills in common and may perform many identical tasks but the lawyer is the licensed professional with the more extensive education and preparation and must take responsibility for the work product of the entire litigation team even that of the most skilled paralegal. Certain legal tasks can only be performed by the lawyer. BY way of comparison in the legislative history of the Towboat Operator Licensing Act we find the owners making their famous 'short leash arguments' in favor of limited testing and experience requirements basically because they claimed their 'operators' in the pilot house were on a short leash and management would take responsibility for any training beyond the minimum required by law and directly and timely provide any services needed beyond the 'Operators' admittedly limited skill range. "

 Limitation was denied and arguments similar to the above started to be made in the numerous allision cases then plaguing the Gulf Coast and Mississippi/Ohio navigation systems. These proved again and again to be the winning argument. It simply didn't matter that industry management passed out titles like master and pilot to licensed Operators, an operator was only a paraprofessional with the owners taking on the professional responsibility unless they hired the actual licensed professionals licensed as de juri masters and pilots by the United States Coast Guard.  Protest erupted among the owners for the Coast Guard to "fix" the situation. The initial Coast Guard response was to up the test content for the Operator's license.  As the test contents were raised in quantity and quality new applicants began to protest that they should be awarded genuine towboat masters, mates, and pilots licenses. The Coast Guard could not change the title of the license without going back to Congress. Finally the demands of the industry management for title changes to the licenses that would preserve their rights of liability limitation were joined by equally loud demands from labor for equality with other specialized licensed "Officers" of the U.S. Merchant Marine . With Congressional permission the Coast Guard established a new towboat deck officer licensed structure offering licenses with titles like "Towing Vessel Master", "Towing Bessel Mate", Towing Vessel Pilot" and increased the scope of testing and experience evaluation associated with the licenses. In the decades since the "new" license structure has provided the industry with effective limitation protections to the extent that such licensed professionals have shielded owners in any of the other water transport trades, which is to say sporadic circumstance dependent and rather unpredictable protection. 

 Having said all that in 2013 lawyers in collision cases should still be aware of the legislative and litigative history of the old Towboat Operator Licensing Law because many of the older "Operators" were "grandfathered" into the new licenses without additional testing. probably some will still be around as late as 2020. So we present the AAB COMMENT below unedited from its original as a portrait in time of this legal evolution. Litigators should stay alert to the type of issues that are described in this COMMENT. As we write the U.S. Coast Guard is again busy tinkering with the license system. While the distinction between "Officers" and "Seamen" in the Merchant Marine has not disappeared from statute of case law, the Coast Guard is slowly removing it from regulation. The old diploma style officer's licenses are being displaced by the all purpose , pass book like "Merchant Mariner Credential". It is too soon to determine the effect of this trend on limitation of liability but once you read the below articulation of past history you should be alert to the emerging possibilities. The superintendence of the U.S. Merchant Marine has been firmly in the hands of the U.S. Coast Guard since the start of WWII and they frequently appear completely out of touch with the realities of the industry. 

Below is the COMMENT as Published and copyrighted in 1995:

 The position of the American Admiralty Bureau relative to the status of the OUTV  (Operator Uninspected Towing Vessel) license is derived from our case experience and research. This description of our position is derived from the article on the same subject by Capt. James A. Wilson USCG (Ret) first printed in the Waterways Journal, March 13, 1995.

 The Towing Vessel Operator Licensing Act [Public Law 92-339, R.S. 4427, as amended 46 U.S.C. 405(b) (July 7, 1972) established that U.S. uninspected towboats would be under the command and control of persons licensed by the U.S. Coast Guard. While the law allowed the employment of traditionally licensed masters, mates,and pilots, it also created a new class of licensee, the towboat operator. Holders of licenses as "Operator" are now predominant in the uninspected towboat pilothouse. Editors note: since 1995 when this was written the "Operators" license has been discontinued and the former "Operators" grandfathered into a new Tow Boat license structure of master.mate, and pilot. Additionally diesel powered towboats are no longer considered "uninspected" within the meaning of the laws and enforcement policies in effect in 1995).
The industry refers to these "Operators" by the job titles of  "Master" and "Pilot". However as a matter of law these operators are not licensed as "Masters" and "Pilots". Indeed there is a qualitative difference in their legal authority and responsibility. That qualitative difference is reflected in the legislative history of the Towing Vessel Operator Licensing Act and its' implementing regulations.

 Unlike the original master and pilot licenses the "operator"grade was originally envisioned as a very limited competency certification. This is clear in the legislative history. However , a series of infamous accidents over the years has contributed to an upward thrust in examination and training requirements. The AMTRAK disaster, with its attendant new radar training requirements, now largely , though not completely , closes the gap in training and testing requirements between the OUTV license and a variety of legally superior licenses in the 500 to 1600 gross ton range which would also legally empower the holder to navigate towing vessels and even allow the carriage of the OUTV as an endorsement without additional examination requirements. OUTV licensees are denied the professional and legal benefits of a license titled "master" but the training and examination factors for the two licenses have narrowed to a point where there is little if any real benefit to a separate OUTV license. Editor's Note: As this manuscript is being prepared in 2013 the OUTV (Operator Uninspected Towing Vessels) license has been discontinued. However at the time that the OUTV license was eliminated holders of OUTV licenses were "grandfathered" into the new masters and pilots licenses without additional examination. Some of these OUTV license holders may have received their original license in the 1970s and never had to undergo an examination comparable to that which is now required. Most of these grandfathered operators should be retired by now but due diligence may require attorneys to inquire into the professional examination history of older tug and towboat pilot house personnel in accident litigation.

 There are two major legal drawbacks to the OUTV license , as compared to any of the available 500 to 1600 ton masters licenses. First the "operator's"license is not considered in and of itself a license as a "U.S. Merchant Marine Officer".  Consequently , The OUTV license needs a separate Merchant Mariners's document ("Z-Card")* in the grade of "Tankerman"to supervise combustible or inflammable liquid cargo operations. * The Z-card for ratings and the diploma style officer's "license" have both been eliminated since this was first written. Today both officers and ratings carry "Merchant Mariner's Credentials" which are bound documents similar to a pass port . Under many circumstances the pollution control laws require liquid cargo operations to be under the supervision of a "licensed officer or tankerman"* Today (2013) the "lesser included authority of officers to serve as tankermen has been eliminated. While Officers still undergo a virtual complete tankerman examination as part of the officer's license examination, they do not receive the tankerman endorsement unless they have also documented certain minimum experience requirements including a certain number of real liquid cargo transfers under the supervision of a certified tankerman. Secondly , the legislative history of the Towing Vessel Operator Licensing Law reflects a number of "short leash arguments" offered by the industry during the lobbying effort for the Act.

 "Short lease arguments" refer to statements indicating that the then proposed "operators"would be subject to close supervision and support by shore side management.  This ''short leash'' was part of the argument for not extending the then existing ''master'' or ''mate'' and ''pilot'' system to uninspected towing vessels. ''Short leash'' arguments were made to encourage the establishment of a license structure for uninspected towing vessels with lessor experience, training, and examination requirements than those of traditional masters, mates, and pilots. Recent (1990s) cases involving bridge allisions that the American Admiralty Bureau participated in , indicate that the ''short leash arguments'' in the legislative history of the act become troublesome when owners attempt to limit liability in the wake of a marine accident. In these cases the vessel owners attempted to limit liability based on a claim that they had hired '' licensed competent officers" and consequently could rely on them for professional services. Pilot error could not be within the ''privity and knowledge'' of owners or managers.  The prevailing counter argument presented the legislative history of the OUTV Act and related regulations. The counter argument held that ,legally the holder of an OUTV license is in fact not ''master'' or ''pilot''  in a professional legal sense. Moreover, management claimed authority and responsibility for training of ''operators'' beyond certain minimums while lobbying for the OUTV Act. The argument that prevailed in the observed cases was on this order:

 "an operator is to an 'officer' or 'master' or 'pilot' as a paralegal is to a lawyer. While the paralegal and the lawyer have many skills in common, there is a qualitative difference in their training and legal status. The 'professional' (the lawyer) must assume final responsibility for the paraprofessional's   (paralegal's) work. In the legislative history of the OUTV Act towboat management assumed authority and responsibility for the 'operators' work product. In fact , industry practice confirms this when companies confer the titles of 'master' and 'pilot' upon individuals licensed as 'operators'. These are titles pregnant with legal meaning. Only when conferred by the Coast Guard can owners claim reliance on independent 'professionals'. When conferred by management upon lesser licensees, the party conferring the title assumes the responsibility for assurance of competency. This was apparently established and agreed to in the legislative history of the OUTV Act and related regulations."

 In evaluating this sample legal argument consider the Coast Guard's original views as expressed in the Federal Register of March 2, 1973 as the final implementing regulations for the OUTV Act were published:

 " The designations of the operator and second class operator were favored by a large percentage of affected individuals, and are included in the language of the congressional committee reports. However , views were submitted that these terms reflected a break with custom and that towboat skippers would be demeaned thereby. Also the introduction of such terms would complicate existing and future collective bargaining arrangements".

 '' It is the Coast Guard's view that the term 'Operator" suits the circumstances and serves additionally to protect the status and prestige of the traditional master. subpart 10.16 places appropriate and reasonable requirements upon the uninitiated and allows their entry into the regulated arena with minimal qualifications for a special license. Considered as a preliminary or intermediate approach, it is a particularly suitable approach for those individuals who will be eligible under the 'grandfather clause' 10.16.71" Note: There is a similar grandfather clause that applied to the more recent elimination of the Operator license, and many licensed "operators" were re-licensed as "Towboat Masters" and "Towboat Pilots". It is not clear whether such "grandfathered" individuals still impose upon owners the liabilities that were discovered relative to the former "Operator" designation. At this writing we know of no test case. But such "grandfathered" officers will be on the Waterways for a few more years. In an accident involving a "grandfathered" master or pilot due diligence for attorneys on both sides of the contest may require some serious research into this issue."

"Furthermore, the path is open for the newly licensed 'operator' to accept the challenge of the higher grade and after a given time make application for and sit for the superior licenses, if he so desires."

" Apart from any of the foregoing, if the master /pilot concept was adopted as requested by some commentators, it would automatically invoke more severe qualifying standards and criteria to the 
the detriment of the entire program. Nevertheless, there is nothing to prevent the more experienced or qualified candidate from sitting immediately for any of the existing master/mate or pilot licenses bypassing the 'operator' step altogether."

Thus the Coast Guard summarized its understanding of the "operator's" license as something less than an officer's license. All then existing and present master,mate, and pilot's licenses are on forms that state: "License To U.S. Merchant Marine Officer", while the 'Operator's' license is on its own separate form.
Note:  (2013) The "Operator License" as previously described has been discontinued in favor of towboat master, mate and pilot licenses but the diploma style "Officer's License" is not being issued in 2013. All mariners officer and ratings alike are now issued pass port style "Merchant Mariner Documents". These new pass port style documents conform to international conventions on such documents.  Elsewhere in the same referenced issue of the Federal Register, the Coast Guard, in similar discussions, refers directly to the legislative history, citing House Report No. 92-125,  92nd Congress (1971). After discussing the limited nature of the new ''Operator's license the Coast Guard addressed the issue of existing ''officers'' serving in command command of uninspected towing vessels:

 " The holder of a license of master/mate (except as mate of inland steam or motor vessels) or pilot may serve as operator of uninspected towing vessels within the scope and limitations endorsed on his license[SS10.16-5(b)].  In addition , the holder of such license may make application for and receive an endorsement as operator of uninspected towing vessels upon the broad geographic areas which include the  limitations of his original license. Such endorsement will be given without further physical or examination. As an example , the holder of a first -class pilots license between Memphis and St. Louis would receive an endorsement as operator of uninspected towing vessels upon western Rivers."
Note: This regulation is no longer in force, there are no automatic towing endorsements on other licenses in 2013. This provision was rescinded when the "Operator" license was eliminated and Master, Mate, and Pilot licenses for towboats were established.

 The limitation cases observed by the American admiralty Bureau (1993-1995)  were lost by the vessel owners when an argument comparable to the following was presented: "Under the OUTV law and related regulations towboat owners have a choice , They can man their vessels with professionally licensed masters and pilots or with paraprofessional operators. When they choose paraprofessionals, they (the owners) assume a major liability for their competency ".  In support of such arguments the legislative and regulatory histories were presented. While we know of no such cases that have been through the appellate system, we see little reason why the argument would not be accepted at that level. Many admiralty lawyers have for years used the terms ''Master''and ''Pilot'' when actually referring to ''Operators'' as though it made no legal difference. However in limitation of liability proceedings we have observed that the distinctions found in law , especially as illustrated by the legislative history of the OUTV law and the implementing regulations, often make the difference between limiting and not limiting. Consequently American Admiralty Bureau Forensic Examiners will make the distinction in report writing and draw the attention of the court to the distinctions in limitation and other proceedings involving uninspected towing vessels in which we take part . Further it is the position of the American Admiralty Bureau that uninspected towing vessel owners do have more accountability relative to operators in their employ than they would have for traditional masters or pilots in the same positions. We note that the Coast Guard is considering changes in the OUTV license structure for the future that could modify  this position at some future date. As this is being written in 2013 the Operator licenses have long been retired and replaced by actual master, mate, and pilot of towing 
vessel licenses and the towing vessels themselves are transitioning into the inspected realm.

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CITE AS: AAB COM. No.2,  VOL.II (1995), ISBN 1-879778-38-6
(C) COPYRIGHT 1995 BY AMERICAN ADMIRALTY BUREAU, LTD.
ALL RIGHTS RESERVED

TOW POWERING AND CONFIGURATION.

 The American Admiralty Bureau published its PREVIEW OF A TOW CONFIGURATION AND POWER GUIDE, ISBN 1-879778-36-x edited by Jack Deck in late 1994. (Update 2013-This publication was followed after a period of peer review and comment by publication of the American Admiralty Bureau's INTERIM RECOMMENDATIONS FOR TOW POWERING AND CONFIGURATION FOR WESTERN RIVERS PUSH TOWS,ISBN 1-879778-62-9 also edited by "Jack Deck" who is CDR John Deck III, USCG (Retired) in 1996. The "INTERIM RECOMMENDATIONS" reflected the peer review and due consideration of the findings released in the "PREVIEW" and noted the following clarifications:

 "The additional research and comment received since publication of the "PREVIEW" as well as analysis of peer and public comment received, leads us to believe that the recommendations in this publication do not represent any undue burden on commerce . We also believe that the recommendations in this publication constitute very minimal safety standards. The margins of safety provided by the recommendations in this publication represent a level of safety below which  a tow generally should not be considered insurable. The margins of safety in this publication are such that regulations that consider them should be carefully construed to consider the local hydrogeography and increase these minimum horse power requirements as necessary. The matrix presented in the ''PREVIEW'' offers some guidance for applying power levels above the minimum while considering operational economics."

 This updated publication also noted:

 "Our recommendations in this publication apply to traditional Western River push towing of barges and should not be construed or extrapolated to apply to any other form of towing activity."

As time passed certain maritime insurance defense firms repeatedly attempted to extrapolate data used in these publications to support grossly under powered tows that had been involved in collisions and allisions. Most often these litigated claims did involve Western River Tows but incorporated over sized barges known as "Jumbos" or "Super Jumbos" in the trades. Both American Admiralty Bureau studies and the underlying scientific studies cited carried out for the U.S.Coast Guard at the U.S. Army Corps of Engineers Experimental Station in Vicksburg, Mississippi were focused on "standard sized" western river barges as they existed between the 1970s and the 1990s. Indeed "standard" "Western River Barges vary little today (2013) from the standard of the era of the last decades of the 20th century. By comparison the "Jumbo", and "Super Jumbo" sizes that certain Insurance defense law firms were trying to defend citing these publications were not only considerably longer and wider, but had considerably more draft when fully loaded. Even mixing a few of these into a tow of mostaly "standards skewed any calculations based on these publications and in the early 2000s the American Admiralty Bureau issued several public admonitions not to use these publications in such a manner via press releases to trade journals such as THE WATERWAYS JOURNAL and WORKBOAT.

 The Bureau has participated in a number of cases where adequate powering of  "Western River" was an issue. While our case experience did not include any cases brought to the appellate level, and no testimony under oath was required of Bureau Examiners , the issue underwent extensive institutional review and preliminary findings have been published,  ( Editor's note: After publication of the second work "Interim Recommendations" Bureau examiners, especially Cmdr John Deck III, USCG (retired) did provide expert witness testimony under oath in a number of high profile bridge allision cases involving Western river type tows and applied the principals reflected in the "PREVIEW" and "INTERIM RECOMMENDATIONS".
Consequently the key elements of those findings which would have an effect on the forensic work of Bureau examiners are restated here. The continuing work of the American Admiralty Bureau in the area of tow powering and configuration is at present confined to ''Western River" "push" tows.
"Western Rivers'"in law and navigational custom refers to the Mississippi  Ohio, Missouri navigation system.  In this system barges are hard wired together and pushed ahead of the "towboat", indeed the ''towboats'' in this system are often referred to as ''push boats''. This same system is also now observable on rivers east of the Appalachians and on the the Atlantic Intercoastal Waterway as well as some of the rivers of the Far West such as the Columbia and the Snake. The present on going study*(*Refers to the "INTERIM RECOMMENDATIONS" now published and planned subsequent work never undertaken)) of the American Admiralty Bureau on tow powering and configuration is applicable to these "Western River" type tows only. No inference from these studies should be applied to hawser tows or any other type of tow. The study described herein is particular to "Western River" tows only. The following quote from the Preview explains the purpose and scope of the study.

"There have been numerous attempts over the years to arrive at an industry consensus standard for tow powering and configuration. The driving force behind these mostly Coast Guard sponsored efforts has been the existence of regulations prohibiting the passage of under powered tows through certain regulated navigation zones or vessel traffic systems. In many cases, the regulation prohibiting passage of ''under powered'' tows does not contain a definition what 'under powered' means. In these cases, the decision as to what constitutes an under powered  tow has been left to the discretion of the individual traffic controller on watch. This has resulted in inconsistent decisions and a desire by both the regulator and the regulated traffic interests for a predictable and standard definition. In other cases , horse power to barge ratios have been established in the system rules. These cases have sparked debate over the adequacy of the safety factor provided. Some regulated navigation interests have complained that the safety factors provided inhibit the economic movement of commerce while mandating unrealistic and unnecessary margins for safety. At the same time, other protected interests such as bridge and waterway facilities in the same system , complain that these same safety factors are marginal at best. The American Admiralty Bureau is presently undertaking a study into tow powering and configuration. (Editorial note-this study has been completed and resulted in two published volumes, published about a year apart one was titled a PREVIEW OF A TOW  CONFIGURATIONAND POWER GUIDE ISBN 1-879778-36-X which was published with the express purpose of peer review and the secodn publication was titled INTERIM RECOMMENDATIONS FOR TOW POWERING AND CONFIGURATION FOR WESTERN RIVERS PUSH TOWS)  It is our hope that research based answers to the many questions involved in tow powering and configuration will bring a rationality to the debate and ultimately to the regulations. The questions to be answered are so many and so complex that we do not anticipate a quick conclusion to such a study. (The study is now completed and is available as  American Admiralty Bureau's INTERIM RECOMMENDATIONS FOR TOW POWERING AND CONFIGURATION FOR WESTERN RIVERS PUSH TOWS,ISBN 1-879778-62-9.  Yet the need for information is so immediate that we feel partial answers as they become available should be published so as to timely enter the market place of ideas and ongoing debate. Even a few researched -based answers can speed and rationalize both the debate and the regulatory process.  More rationality in the process of debate and the regulatory process. More rationality in the process of debate and regulation enhances marine safety. Providing fuel enhancement is the mission of the American Admiralty Bureau."

Our review of predecessor studies of the same subject indicates that the American Admiralty Bureau's study involves actual tow operators, the pilot house personnel , to a greater extent than previous studies. Where the actual operators in the forums free of managerial presence, achieve consensus, we have given great weight to such consensus. Indeed a consensus of sorts does seem to exist among pilothouse personnel concerning horsepower to barge ratios. This consensus begins with an acknowledgement that tow powering and  tow control are affected by a lot more than horse power to barge ratios. Towing power and tow control are affected by horsepower to tow length ratios,overall tow length, tow width, draft, tow mix (loaded barges and empties); propeller, hull, rudder,and kort nozzle configurations; and wind and river stage. However, despite these variables, there are horse power to tow length ratios that can be identified as generally safe under a wide range of conditions and ratios that are generally suspect. As subsequent warnings published by the American Admiralty Bureau in various maritime trade journals have pointed out these ratios apply only to tows uniformly made up of standard sized barges and not mixes of standard and "jumbo" or "super jumbo barges". When a tow consists of barges that are not fairly uniform in length, width and draft the identified "rules of thumb" published in the Bureau's tow powering and barge configuration "guides" should be considered suspect of being too weak. Two tows of the same overall length will respond to hydrodynamic forces much differently if one is made up of uniform standard sized barges and one is an irregular mix relative to length, width, and draft. The irregular tow will require much more horse power but the Bureau was not able to offer any rules of thumb for applying horsepower to irregularly configured tows, other than to note that more horse power is required. The research conducted for publication of the PREVIEW OF A TOW CONFIGURATION AND POWER GUIDE indicated that powering ratios equivalent to approximately 200 hp per standard sized barge (195') were generally safe under a fairly wide variety of tow configurations, weather conditions, and river stages. This same research indicated that horse power to tow length ratios under 1 to 1 (1hp per 1 ft. of overall tow length or 195 hp per standard sized barge of approximately 195') became progressively more hazardous as factors such as tow length, and river stage, or wind velocity (in the case of empties) increased. Powering levels below 140 hp per standard size barge appear highly suspect under a wide variety of conditions. Full details of the study are contained in the AAB publication PREVIEW OF A TOW CONFIGURATION AND POWER GUIDE. ISBN 1-879778-36-X and was updated in the subsequent publication the INTERIM RECOMMENDATIONS FOR TOW POWERING AND CONFIGURATION OF WESTERN RIVER PUSH TOWS . However the following basic findings constitute guide lines for American Admiralty Bureau Forensic Examiners effectively immediately. 

1. The adequacy of tow powering can not be ascertained by horsepower to tow length ratios alone, though this is a logical starting point for such examination.

2. Horsepower to tow length ratios become more critical as tow length increases. Concern should become heightened at tow lengths of three standard barges and above.

3. While vessel traffic controllers utilizing horsepower to tow length ratios as part of their decisional process may be well advised to consider horsepower as understood and reported by the operator; AAB Forensic examiners working after the fact of an accident , should base judgements on effective shaft horsepower if this can be ascertained.

4. As a general rule, subject to consideration of such factors as tow length, tow mix (loads /empties), tow configuration , prop size and type, presence or absence of kort nozzles, river stage, wind conditions,etc. 200hp per standard size barge is rarely suspect of under powering while 140 hp per standard sized barge is generally suspect. The probability of under powering of all ranges in between
increases with any combination of rising river stages, increasing wind, increasing tow length, etc.

5. The Bureau recognizes the existence of Coast Guard studies as detailed on page 16 of the AAB PREVIEW OF A TOW CONFIGURATION AND POWER GUIDE, ISBN 1-879778-36-X, which suggest much higher horsepower to tow length ratios than those suggested in our publication. These studies examine a specific area than those suggested in our publication. These studies examine a specific area with its particular turn geometry and peculiar current patterns. In determining adequacy of powering levels these studies warrant consideration in the specific areas studied or in very similar areas.

 6. The Bureau notes the recent proposed horsepower to tow length ratios proposed by the American Waterways Operators Association (AWO) to the U.S. Coast Guard Captain of the Port of New Orleans and reported in the Waterways Journal of February 20,1995.

7. the Bureau also notes the strong opposition to these proposed ratios by the American Inland Mariners Association. Moreover these ratios do not conform to any research based ratios we could identify.  Whereas the AWO membership is primarily industry management and AIM consists primarily of actual pilothouse personnel we have given due consideration to both conflicting views and concluded that marine safety is best served by giving weight to opinion of the personnel charged with the actual task of handling the tow. Additionally AIM suggested ratios conformed with fact based research findings. Consequently AAB Forensic Examiners will not consider these particular AWO recommendations as valid standards. Nothing in this position should be construed as invalidating any other AWO recommendations as a source of standards acceptable to the American Admiralty Bureau.2   The subject of tow powering and configuration is ongoing with the American Admiralty Bureau. As additional findings are confirmed and adopted for use within the Bureau they will be reported in future editions of THE COMMENTATOR in condensed form and with supporting datain AAB publications dealing exclusively with tow powering and configuration.3

2. SEE AAB COM. NO. 3 VOL.II (1995) ISBN 1-879778-38-6
3. SEE ALSO: 

         1. AMERICAN ADMIRALTY BUREAU'S PREVIEW OF A TOW CONFIGURATION AND POWER GUIDE, ISBN 1-879778-36 XAN ANALYSIS OF BERWICK BAY BRIDGE PASSAGE
       
         2. ANALYSIS OF BRIDGE ALLISION INCIDENTS , by R. B. Dayton Vol. I & II Reports CG-D-77 & CG-D- 118-76

         3.  AN ANALYSIS OF THE BERWICK BAY BRIDGE PASSAGE ,June 1980, CG Report CG-D-68-80

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CITE AS AAB COM. No. 3, VOL II (1995), ISBN 1-879778-38-6 
(c) Copyright 1995 BY AMERICAN ADMIRALTY BUREAU, LTD ALL RIGHTS RESERVED.

ADVOCACY GROUPS AS STANDARD SOURCES
_______________________________________________________________________________

In AAB COM. NO.2 VOL II (1995) ISBN 1-879778-38-6 the Bureau considered conflicting proposed standards from two groups , rejecting the proposal of one organization(The AWO) and positively considering the proposed standard of another (AIM). The American Waterways Operators (AWO) is an organization of inland waterways operating companies. The American Inland Mariners Organization (AIM) is an association of Coast Guard licensed and certified inland boat crewmen and officers. Both organizations have a legitimate interest in safety and access to vitally important data relative to inland marine operational safety.  However both organizations are advocacy groups for their respective membership. The membership of either group on any particular safety issue may not have the most economically feasible level of safety as a primary goal.  Such organizations are not purely safety organizations. None-the-less such organizations often are sources of important and useful safety standards. Another example of an organization that the American Admiralty Bureau often cites but which is not a classification society, regulatory agency, or other safety organization is the American Marine Manufacturers Association. (AMMA). The work of these various industry advocacy groups in safety is important and worthy of note.  Indeed some appear so concerned with safety matters that they take on the appearance of a hybrid between an industry advocacy organization and a quality assurance organization.

 Unfortunately such groups do not proceed from a neutral stance, so not all of their safety information can be relied on without scrutiny. The AWO for example , according to a historic Waterways Journal article, over estimated the size of the inland towboat industry work force to the Coast Guard. This overestimate was of such an order that the per capita accident rate the Coast Guard computed from it proved extremely unrealistic once the correct figures were ascertained . This of course fueled speculation to the effect that the AWO may have misled the Coast Guard pursuant to the association's interest in having less government regulation. Whether such speculation was correct or not is immaterial.   The event illustrates the basic problem of standards offered by such groups. Standards offered by such groups may be quite valuable if there is no conflict between safety and any other goal of the organization . The professional who utilizes information or standards from such groups must exercise judgement relative to each standard used. The standards and published information from such organizations must be judged separately with each application. The rejection of one or more standards or other data from such an organization does not invalidate or taint all other  information from the same source. During 1995 the American Admiralty Bureau cited some information from the AWO and rejected their proposed standard on tow powering and work force estimates. Selective use of information from other advocacy groups may be made either in Bureau publications or reports. In selectively using such data Bureau examiners are guided by the following principles.4

1. The rejection of a standard or data from any source does not automatically invalidate any other data from the same source. 

2. When two  conflicting advocacy organizations offer differing information on the same subject the examiner should acknowledge this fact in reports and publications on the subject.

3. When the examiner chooses to reject information from one source and adopt or give credence to information from a conflicting source the reasoning for such choice should be set forth in the body of the report or publication. The problem illustrated by information from industry advocacy groups occasionally occurs with dedicated standards organizations. This is particularly true of the problem of obsolescence in standards. Occasionally one standards organization may have a more lengthy standards adoption process than a similar organization acting on more recent information. Consequently one organization will continue the obsolete standard in force for a longer time after new information becomes available than another. Again the examiner has an obligation to choose , then describe the apparent conflict, and explain the reasoning for his choice.

______________________________________________________________
See also "Standards of Presentation" from the Code of Ethical and Professional Conduct of the National Forensic Center. National Forensic Center 17 Temple Terrace , Lawrenceville, NJ 08648
Editors note: The National Forensic Center cited above in the original publication may have changed locations or gone out of business , it should not be confused with the Federal Testing Laboratory by the same name. The code has been adopted in total or modified for specific forensic organizations over time. Watch for additional postings in this section on the code and the derivative codes. 

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AMERICAN ADMIRALTY BUREAU 'S COMMENTATOR NO.3 INTRODUCED BY OUR CHIEF LEGAL CORRESPONDENT:


File:Brandeisl.jpg The Late Supreme Court Justice Louis Brandeis, our new new Admiralty law commentator and personal friend of the Great Namazu

 I was very pleased to review the updated E-version of  the AMERICAN ADMIRALTY BUREAU's COMMENTATOR VOLUME 3 first written in 1996 by Raymond F. Bollinger, John Deck II, and James Wilson, update completed in 2013.  The subtitle of the manuscript is titled "Matters Marine"and it describes all sorts of situations where the Coast Guard's safety regulations meet the operational world resulting in frequently litigated matters. These matters include but are not limited to, commercial vessel operations in white water and surf, gambling vessel safety, predictability of rigging failures, and safe access to and between vessels and many other subjects that frequently contribute to personal injuries in the maritime world . As many of you know I left active law practice back in 1939 due to my death. I recently learned that the first off shore oil rig appeared off of Louisiana around 1949. So a lot of the contents of this work dealt not only with the general world of shipping but major areas of maritime employment that didn't even exist in my day. However I believe any justice or advocate armed with this reference will be able to discern in advance what legitimate experts will have to say in a given case involving any of the many circumstances dealt with in this volume. It's free to read or consult in its entirety in the ADMIRALTY LAW SECTION, along with volumes 1 and 2 which were updated and posted earlier in 2013. Work continues I am told in 2014 and all of the previously published volumes (six perhaps?) will be available as e-manuscripts on this blog site. I have found the entire three volumes posted so far to be very useful works of what advocates today might call "techno-legal" guidance.

Regards,
Louis
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FREE ON LINE VERSION, UPDATED
AMERICAN ADMIRALTY BUREAU, LTD.
                                                  
                              

AMERICAN ADMIRALTY BUREAU COMMENTATOR VOLUME 3  (update and posting in progress)

                                 "MATTERS MARINE"

Copyright 1996 by American Admiralty Bureau, LTD.  ISBN 1-879778-59-9
By  R.F. Bollinger, John Deck III, James Wilson

For Notes on How to Cite the AAB Commentators see page 1 of Volume 1

PURPOSE AND SCOPE:

  This third volume of The Commentator prepared solely by the American Admiralty Bureau's principle Forensic Examiners. While the first volume of The Commentator had only one author, it reflected lessons from the total case load of the Bureau from 1988 to 1994. Over the years the Bureau had found it necessary on a repetitive basis to articulate the principles described in Vol.I.  Client attorneys who did not understand the principles contained in volume I were at a disadvantage in attempting to utilize the marine regulations, codes, and standards supplied by Bureau examiners. A Knowledge of such principles as the ''Pennsylvania-Reyes Doctrine ", the Walker -Reinhart Doctrine'', the ''General Duties'', etc. is vital to the maritime attorney either seeking the advantage conferred by regulatory violations by the Defendants, or defending against such allegations. The essays of Vol.I outlined the understanding of the American Admiralty Bureau of those doctrines in very concise form. The principals presented in those essays were presented , not as a substitute for legal research into those doctrines, but as an aid in starting such research. The essays of Vol.I also outline the American Admiralty Bureau's institutional understanding of those principles. This understanding is of the nature of navigational expert opinion. Other experts may differ on specific points. Some aspects of these principles are as yet unsettled in law.  Other aspects of these principles are in a state of ongoing change. The Commentator series is published to reflect the views of the american Admiralty Bureau through the date of publication or revision. Nothing in this series should be construed as legal advice . Vol.II updated Vol.I and added new principals derived from that year's case work, research, and publications. That volume was once again prepared by the Bureau's Chief Forensic Examiner, aided that year by Director Examiners Capt. James A Wilson USCG (Ret.), and CMDR John Deck USCG (Ret.). This third volume is subtitled "MATTERS MARINE" because it deals with institutional positions of the Bureau that are highly technical in nature in the realm of the nautical arts and sciences. These positions can have important legal consequences in litigation but they are exclusively technical in nature and not directly matters of law or regulation. Editor's note: Commentator Vol. III is the single most referred to, cited , and quoted volume in the series. This is because the volume deals with the most common of maritime personal injury causes such as inadequate access and egress, rigging failures, the over powering of outboard recreational boats, and much more.

CITE AS: AAB COM. NO.1, VOL. 3 (1966/UPDATED 2013) ISBN 1-87977859-9


FREAK WAVE THEORY

 A "Freak Wave"may be defined as a wave out of proportion to the observable sea state of such magnitude that an ordinarily trained and prudent mariner would not anticipate its presence in the sea state. The "freak wave " is often invoked in personal injury cases involving fast moving boats in a relatively heavy sea state,as a defense against charges of excessive speed. In actuality most such "freak waves" are not freak at all and should have been anticipated. Let's examine an actual alleged `"freak wave" from Admiralty Bureau case records.

Here is a description of the sea state from our record:

 "The weather report by (name withheld to protect client confidentiality) indicated a moderate  Northeast wind flow for the blocks examined all day. North Northeast winds prevailed the day before 10/25/1993. The official observed sea states from Vermilion Block 265 located approximately 5 miles from block 267 indicated seas of 5 to 7 feet at 2258 CST on 10/24/1993 and 5 to 7 feet to 4 to 6 feet throughout 10/25/1993. The boat log indicated seas of 6 to 8 feet. The comparison of the official readings from an adjacent block with the boat log's record indicates a one foot difference in observed sea height. This difference could be accounted by the distance between the recording stations or differences in the height of the eye and experience of the different observers. Winds observed in block 265 varied between 24 to 26.5 knots. It is not known if the boat observer had an anemometer or the ability to correct apparent wind to compute wind speed and direction. Allowing for such differences it appears the closest official weather observations and the logged boat observations are sufficiently close to indicate that the areas had quite similar weather with winds in the 22 to 27 knot range.

Here is our initial analysis:

  The Beaufort scale describes such winds as a "strong breeze" and assigns them the description of "Beaufort no.6". The Beaufort Scale predicts the following descriptive sea state for a no. 6 sea:  ''Large waves begin to form: the white foam crests are more extensive (Probably some spray)".

  The Beaufort Scale indicates that at 22 knots the average wave height will be 6.4 feet while approximately 1/10 of the waves will reach 10 feet and one tenth will be significantly below the average.

  Thus, in a Beaufort Force 6 sea state, a mariner should expect at least more than a 3.6 foot difference between wave heights for at least 10% of the waves encountered. However, at the coincidence of the lowest average wave height and the highest , the difference will be much greater. Finally it should be noted that the Beaufort scale actually utilizes the highest one third of observed waves for average height.The actual variance of wave heights in a given sea state is best illustrated with this quote from "WEATHER FOR THE MARINER" by William J. Kotsch published by the Naval Institute Press.

      "By using table 11-8, it is seen , for example, that if a train has a significant wave height of 10 feet, the highest wave is 18.7 feet, the average highest 10 percent is 12.9 feet, and the mean wave height is 6.4 feet. "

  In the example above, the highest wave in the sea state and some waves of even greater difference are predicted..

  The Beaufort scale is a common feature in much of the authoritative literature utilized by the Coast Guard's National Maritime Center to construct professional mariner license examinations. all licensed professional mariners are , or should be, familiar in literature aimed at amateur boatman, such as Chapman's "PILOTING SEAMANSHIP AND SMALL BOAT HANDLING". 

OUR CONCLUSION:

 A "freak wave" can not include a wave height difference that can be accounted for by the ordinarily jumbled state of any sea as documented in the Beaufort scale.  This wave height difference is often quite steep but should not be a surprise to the properly trained and ordinarily prudent mariner who should expect just such differences and adjust speed accordingly. The mariner should not run at a speed that accounts for only the "typical" or "average" wave height that he is looking at when he sets his speed . He must expect and plan for the ordinary jumbled sea state. Real "freak waves"are the product of more than prevailing wind. They are often the result of geological forces such as earth quakes and submarine volcanic activity. Recent satellite imagery studies have indicated that on any given day there are a few of these truly freak waves moving about the world's oceans mostly off of what we consider the busy shipping routes. While the "freak wave" or "monster wave" may be a daily phenomena on the world's oceans they generally occur thousands if not tens of thousands of miles apart, and are very small in number in the vastness of the world's oceans on any given day. Actual ship or boat encounters with these truly "freak" waves are exceedingly rare. Most litigated cases involving the "freak wave defense" against charges of unsafe speed actually involve wave height differences predicted by the Beaufort scale. The Beaufort Scale is studied by every class of U.S. licensed deck officer and is an expected element in their occupational licensing testing.   Choosing a speed that doesn't consider the wave height differences described in the Beaufort Scale is simply imprudent seamanship.



CITE AS AAB COM.No 2, VOL.3 (1996-updated 213),ISBN 1-879778-59-9

Copyright 1996 by American Admiralty Bureau, ltd, All Right Reserved

COMMERCIAL VESSEL OPERATIONS IN WHITE WATER AND SURF

  There are a growing number of American commercial boating operations taking place on white water sections of rivers and in the surf. The majority of these operations are small passenger vessel "thrill ride" type operations.  A few are more standard sightseeing type excursions where occasional white water or surf operations are coincidentally necessary. Claims seem most numerous in the white water /surf incidental operations. Having examined a number of these types of claims we can offer the following observations.

 Small craft operations within the surf line and on white water require special training. As a matter of practicality and in the general absence of specific regulation this training must be provided by the employer. Coast Guard issued vessel operator licenses imply confirmation that the holder has met minimum general navigational experience requirements and is familiar with typical navigational skills such as a knowledge of the rules to prevent collision, chart navigation, and general seamanship. There is no provision within the motorboat operator and limited tonnage master's license structure for special qualification codes such as "white water operator" or "surfman". A general license as a motorboat operator or limited tonnage master does not imply highly specialized skills upon waters that would be considered non navigable for ordinarily designed and equipped vessels operated by ordinarily competent professionals. Our review of claims histories indicates that generally riverine white  water operators are doing an admirable job of imparting the necessary skills to their operators. Problems appear in the more nearly ordinary tourist excursion trades that operate occasionally inside the surf line or from the beach. Here the special skills in the surf line , particularly when conditions become rough , are not always being imparted adequately by management to operators.  The operators of excursion vessels that operate occasionally in the surf line, understandably complain of a lack of availability of quality training in surf line operations. Our research (in 1996) confirmed that readily available "canned" training programs for commercial operators were not available. In 2013 our research indicated some emerging common concepts and vocabulary in white water operator training within and among these types of companies. The emergence of the Fast Rescue boat operator personal qualification code within the lifeboat man training programs of the American Merchant Marine have generated a few more potential training resources that could be applied to surf operations. Still 2013 finds the industry dependent on individually developed custom training programs developed without benefit of common performance standards. However our research also indicated that many resources exist for the production of custom training programs. Here is what our research revealed.

 Most of the expertise in surf line operations within the United States is found in the Armed Forces. Within the Armed Forces of the United States, operations within the surf line and the beach are missions of the U.S. Navy and U.S. Coast Guard. The Navy's concern is the landing and retraction of relatively large vessels carrying troops and supplies. The need for this skill on a large scale first appeared during WWII. At that time the Navy largely relied on the expertise of the Coast Guard for surf operations. The Coast Guard, through it's predecessor organizations , the Revenue Marine, and the U.S. Life Saving Service, had conducted surf operations for over 100 years prior to WWII including what may have been the first large scale amphibious landing of U.S. Marines by Revenue Cutters at the Tabasco River landing in the Seminole Indian War. The Revenue Marine would facilitate other large scale marine landings in the Mexican War and in Cuba during the Spanish American War. The U.S. Life Saving Service had been developing surf operations techniques for over the beach rescues throughout most of the nineteenth century. By the time these organizations had been consolidated into the United States Coast Guard prior to WWII the Coast Guard had evolved a special "rating" or petty officer rank called "surfman".

 The original Coast Guard surfmen and surf boat techniques evolved at coastal rescue stations guarding dangerous offshore areas. Typically access to the sea from these stations was over a beach and through pounding surf. To rescue crews and passengers wrecked on offshore reefs and shoals the Coast Guard surfmen had to perfect techniques for getting oar or sail propelled small craft out and back safely through the surf. Later these techniques would be modified for application to motorized vessels. To this day such operations rarely involve vessels in excess of 65 feet.

 By contrast, naval operations since World War II have involved craft that continue to increase in size. The Navy has institutionalized surf operations doctrine for modern application. Today, naval surf operations fall under the broader general category of amphibious warfare. Amphibious warfare landing craft operations are taught at the Navy's Amphibious Warfare School at Coronado, California. Today Naval amphibious operations often appear to conquer the surf rather than navigate through it. Surface effect craft literally "fly" over the surf and onto the beach. Heavier landing craft drop kedging anchors before entering the surf line , plow through the surf and go within landing ramp distance of the beach.

 Today Coast Guard surf operations and surf doctrine are still small craft search and rescue orientated. The repository of surf doctrine is Coast Guard Motor Life Boat School Cape Disappointment , Washington. The separate rating of surfman has been disestablished. Today students reporting to both Navy Amphibious Warfare School and Coast Guard MotorLifeboat School already hold operational rates that routinely serve as crew in such operations, most frequently, but not exclusively that of Boatswain's mate. Graduation from Navy Amphibious Warfare School generally the graduate Naval rating the personal qualification code of "Assault Boat Coxswain". Generally the Coast Guard Motor Lifeboat School student is not only rated as a Boatawain's mate or other suitable rate but also holds the personal qualification code of "SAR Boat Coxswain", SAR is an acronym for Search and Rescue. The post Motor Lifeboat School personal qualification code has been called "Surfman" and "Heavy Weather Coxswain at various times over the last forty years. Today an employer seeking a genuine expert on surf operations to run a training program for excursion boat personnel for surf operations should carefully examine the type of craft he operates for similarities with heavier naval craft or the lighter craft of the Coast Guard search and rescue forces. Instructors should then be sought from the community of retired coxswains from which ever school operates boats most similar in size and displacement. Today a genuine expert in small craft operations would most probably a senior or retired senior Coast Guard Boatswain's mate holding the personal qualification codes of "SAR Boat Coxswain"and/or "Heavy Weather Coxswain". An expert in the operation of larger craft in the surf would be a naval Boatswain's mate holding the personal qualification code of "Assault Boat Coxswain" or in the case of some larger craft "Craft Master", especially large hoover craft. But this personal qualification code "Craft Master" is also used to designated enlisted operators of larger "yard" and "in theater" craft, so additional inquiry about specific craft types and operational experience must be made. The duty to train commercial crews is that of the owner. There is no known (at this writing) reliable commercial certification program.



CITE AS: AAB COM. NO3,VOL. III,(1996- updated 2013) ISBN 1-879778-59-9

(c) Copy Right 1996 by AMERICAN ADMIRALTY BUREAU LTD, ALL RIGHTS RESERVED

GAMBLING VESSEL SAFETY:

  The growth of the gambling industry in Louisiana and other parts of the Mississippi Valley has provided the American Admiralty Bureau with the opportunity to observe the daily operations of such vessels closely. Additionally the local industry has provided the New Orleans office of the Bureau with the opportunity to participate in dispute resolution activities typical of the industry. The following observations on gambling vessel safety are adapted from an article by Raymond F. Bollinger, the Bureau's Chief Forensic Examiner (1990-1997), that first appeared in the March/April 1993 edition of WORKBOAT,the subsequent observation of the industry and its regulators in action,(through 1997), participation in the regulatory process through 1995, and a major restudy of the industry between 2012 and 2013. 

 Gambling vessels present some unique dangers and problems; thus an extraordinary passenger safety program is required for these vessels, peripheral staff must be actively involved. Also the passenger safety program must be custom designed for the particular vessel. Originally in many jurisdictions, gaming was not allowed to commence until the vessel got underway. This has become the exception rather than the rule in the early decades of the 21st century. However some coastal gaming vessels are operating that are unsupported by state gaming laws and basically operate out of  coastal ports with short runs to the sea buoy. These "cruise to nowhere" operations basically open the gaming machines and tables after crossing the 12 mile limit. What was discussed in 1996 in this Comment is a true of these coastal operations as it was of the inland operations observed back then. Most states allowing river boat gambling have now opted for gaming while moored where ever adjacent states allow it. It was simply non competitive to require  underway gambling only where ever neighboring jurisdictions didn't require it. Noe the less "Underway only gambling" was an important tactic for getting the gambling camel's nose in the tent and while the river boat gambling rush seems to have subsidized a bit, we will still begin our exploration of the issue where it started in 1996, with the decision over gambling underway, alongside or both. New jurisdictions considering riverboat gambling or legalizing dockside gambling for an existing offshore operation should find this section useful.

  In some jurisdictions , gaming may not commence until the vessel is underway. Unless this rule is modified to allow dockside gambling at least during hazardous weather, extraordinary economic pressure will be put on vessel masters and pilots to make their runs in marginal or unsafe conditions. Where gaming is allowed only after a vessel is underway, an exception should be made to allow dockside gaming if, in the master's judgement, it would be too hazardous to leave their moorings.  Such a practice was adopted in Louisiana in the early days of the revival of riverboat gambling with unexpected hazardous results. The State Police granted routes to licensed gaming vessels without obtaining any realistic assessment of the navigability of the routes relative to the licensed vessels, or even the capabilities of the vessels themselves. This led to unrealistic expectations relative to how often some of the vessels should be sailing. This in turn led to fines of some owners and one arrest of a vessel master. The original Louisiana law called for gambling vessels to sail one hour out of every three around the clock, year long. In fact some of the boats could barely make 150 trips per year safely based on a realistic assessment of their maneuvering characteristics and weather keeping abilities on their approved routes. The reaction by the State Police uninformed by any real institutional knowledge of the nautical arts and sciences, was initially adversarial and aimed largely at vessel captains. Safety was greatly compromised as a result. While the American Admiralty Bureau recommends that a dock side gaming exception be included in gaming laws generally; any jurisdiction granting gaming vessel licenses should undertake a navigability assessment for each site and have realistic expectations of how often vessels will be safely able to cruise. Cruising enforcement efforts should focus on average performance compared to a realistic navigability assessment and avoid second guessing of masters on a daily basis. Even worse, the original Louisiana law was worded in such a way that the State Police could interpret a mechanical breakdown as outside the realm of allowable dock side gaming, prompting at least one vessel to get underway with a partial propulsion system failure. Despite a law intended to allow dock side gaming when it was unsafe to cruise, the original Louisiana regulatory effort created a situation where the master's judgement is subject to review of a state police consultant whose total vessel handling experience was limited to cadet summer cruises and two years of sea duty with the Coast Guard, none of which was in command at sea, let alone experience in the handling of a similar vessel in confined waterways with weather conditions, particularly wind,approximating those found in the gaming vessel's geographic area. No meteorological evaluation of the assigned routes was ever undertaken by a neutral expert. However, even the most cursory review by any one knowledgeable in the nautical arts and sciences reveals that a vessel designed to conform to Louisiana's original gaming boat law can not be properly designed for operation on a 750 square mile lake given the legal requirement for a "traditional 19th century riverboat design and functional paddle wheel".  No such vessel can have the sea keeping abilities to even stay upright in a major blow on Lake Pontchartrain, much less keep craps tables and slot machines level in even a moderate breeze. Such a vessel needs ideal lake conditions to cruise, an event that rarely occupies an entire calendar day. While summer mornings generally are quite good, by afternoon daily thunderstorms are a regular weather feature. In the other seasons periodic weather fronts keep the lake -relatively rough for weeks at a time. Back in the early days of the Louisiana regulatory effort a man who had never had command of a vessel would admonish the lake vessel masters that they should be getting underway when thunder storms  were within five miles of their moorings. Anyone who has ever run before one of these lake storms knows that taking a flat bottomed boat full of people out with one in that close proximity is foolhardy. But under such a legal regime whose wisdom would prevail, the State Police's lawyer cum navigation consultant or  the Coast Guard licensed and experienced master? Sop our historic Louisiana experience tells us that our advice in the WORKBOAT article of March/April 1993 needs updating. A law allowing dock side gambling when, in the judgement of the master the weather conditions are hazardous, is not sufficient protection against economic or regulatory pressures to run in marginal conditions. Such laws must include professional site evaluations that consider vessel configurations, seasonal average weather, and resulting sea state or river conditions that predict for regulators a historical and anticipated average of safe cruise opportunities per year. This in turn, allows regulators to monitor cruise performance as a counterweight to management pressure for to tie up for greater profits. Only such a regulatory schematic can prevent the kind of daily second guessing of the Master that evolved in Louisiana. Cruise regulation must be tied into site approval in a meaningful way and regulatory oversight of cruise performance must be based on realistic yearly average performance and not daily second guessing of the master by consultants who may or may not have proper skills to do so.

 In fact in Louisiana by the time we came to our 2013 update of this comment river boat gambling had spread to adjacent states which did not insist on the boats getting underway to open gambling. The resulting economic competition resulted in a complete revision of the Louisiana regulatory effort that completely eliminated the requirement to get underway before gaming operations could begin. Owners never liked the cruise requirement because some gamblers would get off the boat rather than being forced to stay aboard for a two hour cruise. New Gamblers could not get back back on until the vessel returned to her dock two hours later. However the elimination of the cruise requirement opened a whole new set of safety issues. With dock side gambling legal owners attempted to eliminate the requirement for Coast Guard certified and licensed officers and crews. Why would a vessel that never moves need a master, mate, pilots, deckhands, and engineers?  The Coast Guard seemed willing to give up the regulation of the vessels if they were truly secured to the dock. The local fire services however had other ideas.

 First the fire services pointed out that they had no experience with vessel codes and standards relative to fire protection and that they doubted that building codes would be suitable. Most of the approved sites in Louisiana were on navigable waterways. The sites could not be readily filled in and converted to an enclosed lagoon or similar site. For or better or worse these gambling establishments were set on real vessels in real navigable waters where they could be struck by other vessels even while dock side. Underway or not they faced the hazards of vessels and required crews able to respond to such. The fire services became advocates of continued Coast Guard enforcement of crew and structural safety requirements. One of the remaining and on going bones of contention that may cost an owner dearly in the future is the independence of the security department relative to the marine department. On some Louisiana gaming boats none of the merchant marine officers, not the master, mate, pilot, or engineer are allowed to go in certain spaces where money is handled.  An inescapable standard of shipboard safety is that at a minimum the master, mate, and chief engineer must be familiar with and periodically inspect all compartments on board. Additionally each and every compartment must be addressed over time in fire and damage control drills. For security purposes such drills and inspections must be carefully coordinated with the security department to avoid disturbing cash handling operations. The practice of simply using security personnel to keep the officers and crew out of these spaces at all times will prove unacceptable in the event of a fire, or flooding emergency that breaks out in such a space. Security personnel with responsibility for the cash should actually be part of any fire party that must work the space and their role should be to secure the cash while removing it from the endangered space. Such security personnel must be subordinate to the Merchant Marine Officer leading the fire or damage control team and drill regularly with the team.

 Regulatory pressure to run in marginal conditions may not be the only problem in jurisdictions where gaming can begin before the boat leaves the dock. A major safety problem is hoe will the vessel's officers ever secure the passenger's attention for the safety orientation mandated by 46 CFR 185.25? Periodic safety announcements after gaming begins will not be listened to by passengers. They won't their concentration broken nor winning streaks interrupted. Gamblers tend to group in bunches around various tables. This will not be conducive to orderly egress in the event of an emergency. Gamblers are more prone to transform into an unruly mob, given the their focus on the game and the presence of cash or chips on the table . Other gamblers may be scattered alone and out of easy sight, bent over slot machines. Emergency evacuations and crowd control are complicated by such situations. Such conditions call for a proactive passenger safety program. In the American Admiralty Bureau's examination of passenger injuries that result in court cases we have observed three general rules of thumb.

  • Courts tend to view most excursion boat operations as in a manner similar to common carriers; they allow few excuses for not returning passengers in the same physical condition as when they embarked.
  • In deciding how "negligent" an excursion boat company was in returning passengers in less than a perfect replication of their health at boarding time, courts look to the adequacy of warnings and the level of proactive efforts at detection and correction of hazards. 
  • Companies with strong passenger safety programs -those providing adequate warnings about tripping and falling hazards and adequate information about life preservers (more typically called "personal flotation devices" or "PFDs" today) and emergency procedures; generally fare pretty well in personal injury lawsuits.  Other important items companies should emphasize are adequate surveillance of deck conditions and passenger activity by mates and watchmen, positive training procedures for food and beverage personnel in emergency procedures, and clearly uniformed crews. Companies without these measures generally get "slam-dunked by plaintiffs.
 It is likely that admiralty courts will view gaming vessels as just another species of excursion craft and treat personal injuries in the time tested manner described above. Unfortunately for gaming vessel operators, implementing proper passenger safety programs requires more effort than is necessary for traditional excursion vessels. This is because there is often an educational aspect to many non-gaming excursion vessels. Their passengers expect to hear a lecture of some sort. They are generally interested in the boat and in meeting and chatting with the boat's officers and other crew members. Gamblers are less likely to focus on these aspects of a cruise.
 The following suggestions represent practices that American Admiralty examiners look for aboard a well run excursion craft.  Modified as indicated for gambling operations these suggestions should prove useful in developing a passenger safety program for a gaming vessel.

 Station senior uniformed officers (captain, pilot, mate et al at the foot of the gangway during boarding. As they greet oncoming passengers, have them give warnings about footwear and other common tripping /falling hazards. Signs concerning such hazards should be posted at this location.

Station other uniformed officers (such as junior mates, watchmen or pursers) at he quarter deck to assist the passengers off the gangway and onto the ship and to provide oral instructions about life preserver locations and an admonition to follow the instructions of uniformed crew members in the event of an emergency. Repeat the warning about tripping and falling hazards.


Have pit bosses and supervisory food and beverage personnel dress in the traditional uniforms of the Merchant Marine's purser and stewards departments. These people will be key players in any evacuation and key providers of safety information. People will be more likely to recognize them and follow their instructions in an emergency if they look the part.

 Insure that dealers and supervisory food and beverage personnel know how to locate life preservers, instruct passengers in donning life preservers and direct passengers safely in the event of an emergency.

 Dealers and all food and beverage personnel should participate fully in all drills and other safety training.

 If gaming is allowed dock side , each dealer should give a basic orientation to players before opening his or her table, including pointing out life jacket locations and demonstrating how to put one on.

 Most gaming operations tend to encourage the consumption of alcohol. If there's a fire or collision afloat, the under the influence passengers will complicate evacuation. The law only requires mates and watchmen on inland vessels when passengers are carried overnight. Considering the heavy alcohol consumption of such a passenger load , a prudent company should employ a large number of trained mates and watchmen (at least one watchman per deck and a roving licensed mate as supervisor). The mix of alcohol and gaming tables can prove deadly. Yet we have already witnessed in Louisiana the dismissal of licensed mates as soon as they were no longer required on the USCG certificates of inspection, or revenues were not as projected. Traditional marine watchman (mate trainees) have generally not been employed. It appears that most companies feel they are redundant with their uniformed security. However, some Louisiana man overboard incidents indicate that such security personnel are more likely to be watching the money than the passengers.

 These are just a few suggestions for tailoring a safety program to the special needs of gambling boats. A program should be professionally devised for each vessel.

  The emerging gaming vessel industry, at least as observed in Louisiana, did not generally handle the safety issue well early on, prior to the advent of legalized dockside gambling. Moreover, state police efforts at enforcing cruising requirements were not conducive to overall safety. No state that presently allows such vessels enjoyed overwhelming public support for the concept when it was introduced. Strong opponents of gambling vessels have been active in each state that has allowed this activity. One tragic accident involving inattention to the unique safety requirements of such vessels could awing the tide of public opinion. Gaming vessel owners must do better than the performance observed during the industry's start up in Louisiana in insuring passenger safety. The state police in Louisiana and other regulators elsewhere must insure that their efforts to enforce cruising requirements, if any are imposed, do not undermine the authority of the licensed and trained master as was the case with past efforts in Louisiana. A realistic cruise area navigational assessment must be part of the license approval process or added as a remedial measure so that cruise requirement enforcement is a matter of monitoring an annual or seasonal average of cruises realistically based on typical seasonal weather patterns and the unique sea keeping handling requirements of each vessel, and not a matter of daily second guessing licensed masters. How much more pressure could possibly be exerted on masters to run regardless of their own professional judgement than the carefully orchestrated televised arrest of a master as once occurred in Louisiana. Those state agencies charged with enforcing the provisions of state gaming laws must also get aboard the safety effort and not hinder it.

 Finally, speaking of the master's authority and responsibility, we have observed that in the early Louisiana practice some masters were refused access to some spaces on their vessels where cash is kept or handled. The master and no one else, including even the highest echelons of management, is answerable to the Coast Guard for the fire protection and watertight integrity of the entire vessel. The master cannot carry out his responsibilities if he does not have access to the entire vessel. Special security precautions are to be expected but denial of access to master should be grounds for the Coast Guard to pull the vessel's Certificate of Inspection. Some time after this comment was first written an accident happened aboard a New York City ferry with fatal results. For the first time in many years prosecutors invoked the unique "Maritime Manslaughter Statute" to indite not only the master and the pilot on the vessel but the shore side operations manager as well. Gaming vessel management intent on tight control of the masters duties and access had best consider that they may be held responsible for his failures in the event of a fatal accident. The Coast Guard never did step up to back up the authority of its masters in Louisiana. Tropical storms and industry competition simply forced common sense in the form of dockside gambling to prevail.

 In this industry masters need to seriously consider organizing against being the official whipping boys for both management and the regulators. Management may serve jail time with the masters but will never serve the master's time for the results of imposing managements navigational judgement over the masters. The Coast Guard will never restore the occupational license of a master who followed the nautical judgement of a desk bound manager rather than his own. In our observation it is very easy for an accident causation matrix to evolve aboard these types of vessels. 
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CITE AS; AAB COM.NO.4 VOL. 3 (1996, updated 2013) ISBN 1-879778-59-9
(c) 1996 by American Admiralty Bureau, Ltd. 

PREDICTABILITY OF RIGGING FAILURES:

  Examiners of the Bureau have often been called on to review personal injuries that resulted from sudden and apparently unexpected rigging failures. examples of rigging failures include the accidental parting of cargo whips, shrouds, stays, tackles, mooring lines, and similar devices. To the observer untutored in the arts of the boatswain or rigger these accidents appear random, unpredictable, and unpreventable. Indeed for many a ship owner or insurer this has literally been their defense against negligence. To the trained boatswain such a defense usually rings hollow. The only truly unpredictable rigging failures involve undetectable to the naked eye, manufacturer's defects. Most other rigging failures , with rare exceptions, are predictable and thus preventable through a regular program of inspection , maintenance and hoist or strain planning.

 The parties most directly responsible for such inspections, maintenance programs, and planning are the licensed deck officers, with ultimate on board responsibility resting with the master. On larger vessels the responsibility is chiefly discharged through the services of a boatswain selected by the master from among the most experienced able seamen. Aboard many union manned vessels the boatswain will have also attended a union school for the position of boatswain and may regularly sail as such. The naval services have established the petty officer ratings of Boatswain's mate Third class through Master Chief Boatswain's mate. These ratings require extensive work experience and formal training followed by completion of both competency and competitive examinations. Promotion beyond the rating of Master Chief Boatswain's mate is to the ranks of commissioned warrant officers or "Chief Boatswains" ( as contrasted with the non commissioned grades of boatswain's mates). Both naval and union schools that address the boatswain's rate include extensive formal training in rigging and marlin spike seamanship.Licensed deck officers are assumed to have had such training as well as it is an instructional subject at all U.S. maritime academies and a test subject on Coast Guard administered Merchant Marine Deck Officer license examinations.

 Authoritative literature such as the various Naval and Coast Guard training manuals for the boatswain's mate ratings, cordage and wire rope manufacturer's manuals, and various guides on rigging and marlin spike seamanship all describe standard inspection techniques for determining the level of wear and deterioration of natural and artificial fiber cordage and wire rope. The same body of authoritative literature describes various formula for determining breaking strain and safe working load of cordage and wire rope based on size, composition, and the "lay" or make up. additionally  mechanical advantage and safe working load of blocks and tackles may be obtained from these same sources. Numerous small pocket references are on the market that provide many of the needed formula for the practical use of the ship's officer or boatswain.

 In planning a lift or other rigging application the prudent boatswain or ship's officer first ascertains the dead weight to be moved or lifted, and then rigs to keep this weight below the safe working load of the rigging. The same references that provide formula for determining safe working load and breaking strength often contain suggested safe working load factors or how far below the breaking strain one can safely work in a given application.. For example, the safety factor for handling men aloft, or munitions, would be much more critical than for handling bagged agricultural produce. One could certainly work closer to the breaking strain when slinging bagged produce than when handling men aloft or munitions when the line suspending the "item" to be hoisted should not be strained anywhere near the breaking strain. In any rigging failure where unpredictability is claimed the responsible supervisor should be made to explain his computations of safe working load for his rig.

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CITE AS: AAB COM. NO.5, VOL.3 (1996-updated 2013) ISBN 1-879778-59-9

(c) Copyright 1996 by AMERICAN ADMIRALTY BUREAU,LTD. ALL RIGHTS RESERVED.

SAFE ACCESS TO AND BETWEEN VESSELS

  
Safe access to and between vessels is required in the general Maritime Law (for example see John R. Buckner v. State Boat Operators 680 F. Supp or Herbert v. Otto Candies 680 F.Supp 503), by common sense application of the general and regulatory duties to provide a safe work place (See Sec.5 OSHA Act 29 U.S.C. 651-678 and 33 CFR 142.4) and a sea worthy vessel [See AAB COM. 2&3, VOL.1 (1994) ISBN 1-879778-27-0, and in a number of applications by specific regulation. There can be no doubt that there is a duty on the part of the vessel owner to provide for safe access or egress unless care and custody for the vessel has passed to another, as might be the case of an unmanned vessel in a repair yard. In such cases the party having care and control in the manner of a bailee has the inescapable obligation for providing safe access and egress for a workman and others having legitimate business aboard. As the duty to provide safe access and egress is undoubted most legal contests center on just what constitutes safe access and egress. Here experts witnesses differ. Often safe access and egress  are clearly defined in regulation particularly for certain activities described in title 29 CFR. Numerous codes and standards exist for gangways, ladders, Jacobs ladders, and similar marine access and egress devices. Unexplaineably, some experts continue to argue that certain "practices of the Industry "make acceptable access and egress by jumping short distances or climbing over various ship's parts never intended as ladders or footing surfaces.

 The American Admiralty Bureau has examined numerous cases involving safe access and egress during longshoring, ship building, ship breaking and repair operations as well as similar cases at designated "marine terminals". All such locations and activities are addressed in Title 29 CFR, the occupational safety and health regulations. These regulations detail in varying degrees safe access and egress, generally requiring that access and egress be by mechanical appliance such as a ramp, gangway, ladder, or rope ladder.

 THE BUREAU HAS CONSISTENTLY MAINTAINED THAT REGARDLESS OF ANY REGULATORY LOOPHOLES IN CIRCUMSTANCES WHERE SAFE ACCESS AND EGRESS IS NOT DEFINED BY REGULATION, PROPER MECHANICAL APPLIANCES MUST BE UTILIZED UNLESS SEAMEN AND VISITORS CAN STEP FROM A NORMAL WALKING SURFACE SUCH AS DOCK TO A NORMAL WALKING SURFACE SUCH AS THE DECK IN A SINGLE STRIDE. STEPPING OR CLIMBING ON NON WALKING SURFACES SUCH AS BITTS AND GUNWALES OR JUMPING CAN NEVER BE PART OF SAFE ACCESS AND EGRESS.
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CITE AS: AAB COM. NO. 6, Vol. 3 (1996, updated 2013) ISBN 1-879778-59-9

(c) Copyright 1996 by AMERICAN ADMIRALTY BUREAU. ALL RIGHTS RESERVED. NEW MATERIAL BY DERIVATIVE RIGHT.

CREWMAN FATIGUE:

 The case experience of the American Admiralty Bureau indicates an increase in the number of claims involving crew member fatigue as an alleged cause or as a defense. These claims are most numerous in the towing and offshore oil and mineral industry fleets where the two watch system is the norm, and reduced crew size is impinging on what little rest time is available to crewmen already required to stand 12 hours of watch per day. Prior to the 1980s fatigue constituted a weak claim or at best, a vague defense. The prior weakness of fatigue as a basis for a claim or defense was due to the relative lack of hard scientific data on fatigue. The courts viewed most arguments on the subject as based on dubious subjective criteria, easily dismissed. Today, however, much is known and quantifiable about fatigue.  American Admiralty Bureau examiners are guided by the verifiable facts about fatigue outlined in this article when evaluating claims and defenses based on fatigue. Fatigue claims generally require medical expertise to evaluate with one exception . WHEN AN EMPLOYER VIOLATES SPECIFIC REGULATIONS INTENDED TO PREVENT FATIGUE, FATIGUE MAY BE ASSUMED TO BE AT LEAST A CONTRIBUTING CAUSE OF THE CASUALTY.  While this assumption is for the guidance of American Admiralty Bureau forensic examiners it also reflects assumptions that Federal Courts are likely to make based on the Pennsylvania-Reyes Doctrine [see AAB COM, NO.1, VOL.1 (1994) ISBN 1-879778-27-0]. WHERE NO SPECIFIC FATIGUE RELATED VIOLATION HAS OCCURRED BUREAU EXAMINERS MUST CONSIDER THE MEDICAL EVIDENCE UNDER THE FOLLOWING GUIDELINES.

1. At present there is no standard scientific or legal definition of fatigue. In considering fatigue in the context of a marine casualty the operative concern is involuntary loss of alertness. Medically such a state is characterized by involuntary inattention, "micro sleeps", nodding, falling asleep while engaged in an activity such as steering, and being in a highly error prone state medically referred to as "automatic behavior syndrome".

IF THE MEDICAL EVIDENCE INCLUDING EXPERT TESTIMONY INDICATES THE PRESENCE OF SUCH SYMPTOMS IN THE PERTINENT CREW MEMBER AT THE PERTINENT TIME "FATIGUE" SHOULD BE ASSUMED TO BE AT LEAST A CONTRIBUTING FACTOR IN THE CASUALTY UNLESS A PREPONDERANCE OF THE EVIDENCE PROVES A MECHANICAL CAUSE INDEPENDENT OF SUCH HUMAN FACTORS. 

2. If fatigue as described above was induced by working conditions or hours imposed by the employer, the effects of the fatigue should be attributed to the employer. where fatigue is induced by employee misbehavior the effects of the fatigue should be attributed to the employee. "Misbehavior" in no case should be construed as such activities as travel to or from the job, food preparation, laundry, or any other task related to maintaining normal levels of human health and comfort, including some levels of purely recreational activity.Where the employer imposes more than an 8 hour work period within a 24 hour period , the available time for such necessary activity is compressed against the necessary time for sleep. Where a work day of 12 hours or more is imposed such necessary activity most always is severely compressed against available sleep times. Human beings require properly prepared food, clean clothing, contact with their friends and family, a clean working and living environment, and occasional wakeful diversions from their labors. If the laboring hours are extended these needs will be filled out of time available for sleep.

3. Not all time available for sleep is of the same quality. Where shift work or watch rotations impose 24 hour operations employers must consider human "circadian rhythm" in planning work or operations. Circadian rhythm refers to the normal human physical tendency to experience periods of sleepiness or wakefulness in response to a 24 hour cycle. For about about 80% of the population the circadian rhythm about as outlined below.

            4 a.m. to 7 a.m.: We begin to awaken from sleep and experience a rise in body temperature and shifts in our biochemistry toward wakefulness.

             7 a.m. to  2 p.m. Daylight peak period of wakefulness

             2 p.m. to 4 p.m.  A minor biochemical shift towards sleepiness. Easily overcome in a busy or interesting environment. But most people if bored and warm during this period, and especially if exposed to reduced lighting will tend toward sleepiness.

            4 p.m. to 9 p.m. A second peak of wakefulness occurs during these hours.

            9 p.m. to 4 a.m. Wakefulness or alertness declines throughout this time frame until normal sleep occurs. If not asleep by the early morning hours prior to 4 a.m. wakefulness declines to truly problematic levels for most people even if they have slept at other times during the day. The "second wind" that some night watch standers report between 4 and 5 a.m. is simply the circadian rhythm starting up again. As illustrated by the above description of circadian rhythm, a twelve hour day watch may induce less fatigue under some circumstances than an eight hour day watch. Where a 12 hour work day is split into two six hour watches both compress other human needs time against very minimally available quality sleep time. One of the six hour watch periods will be more difficult to remain wakeful through than the other.



4. The use of twelve hour, two watch systems is common throughout the work boat industry.The now established industry practice on smaller craft of of eliminating the cook's position aboard pushes on remaining crew the duties of food preparation and galley cleaning, if not grocery purchasing and budget management. A full time cook in the crew of a two watch vessel, as is the normal practice aboard the larger Western River towboats ("line hauls") is a major management tool in reducing fatigue aboard such a vessel.

5. MANAGEMENT HAS A DUTY TO MANAGE OPERATIONS IN A MANNER THAT CONSIDERS AND MITIGATES FATIGUE. Fatigue to a level that seriously impairs function is a "recognized" hazard prohibited by the "general duty clauses" of both the OSHA Act and the Coast Guard's OCS regulations, and the general maritime law. [ See AAB COM. No. 3 & 4 Vol. 1 (1994-updated on this site as an on line E Book 2013) ISBN 1-879778-27-10]   Editor's note: See also current regulations the Coast Guard was directed several years ago by Congress to develop "scientifically based"regulations to combat fatigue. Since 2001 the USCG has received quite a number of unfunded mandates such as this , most that have been addressed have involved maritime intelligence and physical port and waterway security. Another round of serious bridge accidents or any number of other events could move this regulatory development to a front burner. The basic circadian rhythm described above is reflected in certain International Maritime Organization (IMO) documents and has been adopted into the national maritime safety laws of many signatory nations. The USCG is the U.S. representative to the IMO so any eventual black letter regulation on fatigue, mandated to be scientifically based will most probably reflect consideration of the circadian rhythm as reflected above.

6. Management can be assessed liability for some off duty accidents as "fatigued" employees proceeding to or from work. [ See Robertson v. LeMaster, 301 S.E. 2d 563, and Faverty v. McDonald's (Oregon) Maltnomah County Circuit Court No. 9001-00394 (1991). The courts have been reluctant to hold employers responsible for the off duty effects of fatigue  induced by excessively demanding work scheduling due to the employer's inability to control the actions of the off duty employee. [See Pilgrim v. Fortune Drilling Company, Inc., 653 F.2d 983 (1981). However since about 1983 the courts have been showing an increasing willingness to hold employees responsible for such off duty accidents including liabilities to third parties injured by their off-going fatigued employees. This willingness has been based in part on the increased scientific ability to predict real impairment based on working hour analysis compared against the growing body of knowledge of the circadian rhythm.

BUREAU EXAMINERS NEED NOT WAIT FOR NUMEROUS SUCH CASES TO BE DECIDED AT THE APPEALS COURT LEVEL TO FIND EMPLOYEES AT FAULT FOR OFF DUTY ACCIDENTS OF FATIGUED EMPLOYEES WHEN FATIGUE INDUCED IMPAIRMENT IS PROVEN OR REASONABLY ASSUMED AS IS THE CASE WHERE FATIGUE PREVENTION REGULATIONS HAVE BEEN VIOLATED. THIS IS ESPECIALLY TRUE IN CASES INVOLVING TRAVEL DIRECTLY FROM WORK.  IN CASES WHERE TRAVEL IS NOT DIRECT (NOT INCLUDING STOPS FOR FOOD, GAS, ETC. DURING A LONG COMMUTE) A JUDGEMENT CALL MUST BE EXERCISED AT THE PERTINENT POINT AND THE JUDGEMENT EXERCISED BY THE EMPLOYEE. 

The less direct an employee's home bound transit is the less likely that the employer should be held liable for the effects of fatigue induced functional impairment.

 Attorneys seeking to study an astute use of expert witnesses and circadian rhythm theory in a maritime claim with numerous implications for both claimants and defendants should review the work of defense counsel Herbert W. Brown III, Esq. of Calvesbert & Brown, San Juan P.R. in McAllister Brothers v. Carnival Cruise Lines ( USDC Puerto Rico, Civil Case No. 89-1367), a case not normally reported, as it settled. Despite its lack of precedent value the case is uniquely instructive on the rapidly evolving issue of fatigue induced impairment.

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CITE AS: AAB COM. No.7, Vol.3 (1996 -updated 2013) ISBN 1-879778-59

Copyright 1996 by American Admiralty Bureau, Ltd. on line update 2013 by derivative right

POWERING OF RECREATIONAL BOATS:

 One of the more common claims examined by the American Admiralty Bureau forensic examiners involves the powering of recreational boats.  This problem usually manifests itself in three different ways.  One may be in the form of unexpected auto-generated radical turns resulting in injury or death. The second most common related accident that the Bureau has examined involves dynamic instability while underway on a straight course. The third typical power related accident cause or contributing factor is the loss of lateral stability in turns.

 Auto-generation of a right turn occurs from a loss of steering control over the outboard motor or inboard/outboard while the drive is trimmed out away from the transom. In either case the alignment of the propeller shaft is at an angle to the direction of the water flowing past it. What occurs is that as the propeller rotates, the blades on one side of the propeller are at a different angle of attack to the water flow than are those blades on the opposite side of the propeller. This produces different forces on the engine on its steering axis. If the steering system is intact, the operator can usually hold the engine straight. If the steering system is not intact or is loose, or the operator lets go or can not control the system, the motor will turn and the boat will go into an uncontrollable turn. The more horsepower being applied (ie the more engine rpm) the stronger the turn and more violent the resulting boat maneuver. Likewise, with the same applied power, the more that the engine is trimmed either in or out , the stronger the turn. There is a limit in trimming out where the propeller will start to suck air and ventilate losing thrust in the water.

 A common scenario occurs when a boat is "coming out of the hole", that is accelerating to get on plane with the motor trimmed in, and there is a loss of steering or the operator lets go and there is a violent turn.  Most of the outboards and inboard / outboard drives have right hand turning propellers, that is the propeller when viewed from the back looking forward is turning in a clockwise direction. There are left hand drives, but these are usually associated with twin engine installations. A right hand turning engine will turn to the right when the engine is trimmed in. The same engine will turn to the left when the engine is trimmed out.

 Dynamic instability is the term given to several boat behaviors which may have different origins.  One is "porpoising", which is a constant pitching of the bow unrelated to wave action. pitching is the vertical movement of the bow with the boat rotating around its center of gravity. Pitching is the vertical movement of the bow with the boat rotating around its center of gravity. For a planing boat, depending upon the design, this center is somewhere about two thirds of the length of the boat back from the bow. "Porpoising" is usually associated with trimming the engines too far out, with the weight distribution  (ie. passengers, fuel, outfit, etc.) being too far aft. It can also be the result of a bottom design problem where there is a discontinuity in the bottom running surface of the boat.

 Another behavior usually associated with vee-bottom hulls is "chine walking". A "vee-bottom" hull at high speed rises well out of the water such that only the small bottom part of the "vee" remains in the water.
This results in a reduced beam of the boat being in the water and subsequently reduced roll stability.  Consequently, the hull may have a tendency to roll to one side and then the other. This results in an oscillatory motion from side to side. If the motion appears to be intensifying , then the boat must be slowed down or it may go out of control.  Some chine walking can be controlled by small , properly timed, continuous steering corrections as well as finding an optimum motor trim angle.  This takes an experienced operator. Some chine walking can be induced by loose steering.  Boat designers often include in a design  what is called "running strakes", those little triangular elongated wedges which run lengthwise along the hull bottom, to minimize chine walking.

 The third hull behavior is a combination of dynamic instability and chine walking. This is called "corkscrewing" .  "Corkscrewing is usually a design problem beyond the operator's control other than slowing down.  Usually the boats that exhibit this behavior are meant for serious high speed operation such as bass boats or inboard / outboard offshore sports boats. Slowing down is not usually an agenda item for the operator.

 Loss of lateral stability in a turn can result from either of two different causes manifesting itself in two different behaviors. First is the "chine hook" or "bow steer."  The "chine" is the point on the hull where the sides of the boat meets the bottom of the hull.  A turn is a balance of forces tending to turn the boat in a lateral direction, that is towards one side or the other.  The boat will bank towards the inside of the turn and will slide to some extent towards the outside of the turn. Usually there is a slight trim aft on the boat, that is the bow of the boat is slightly higher than the stern. Sometimes, the bow may go lower into the water such as in response to a wave or because of design, or or excessive engine trim. The bow may then "catch" in the water, causing a disruption of the boat around the bow . This motion is usually very violent and can cause ejection of the passengers, tossing of the passengers within the boat, or capsizing of the boat. It is called a "Chine Hook". ''Chine hook'' can be caused by running the boat with the engine trimmed in excessively, having too much weight forward, a bow design which is very full, or as sometimes happens with even proper design and operation, catching a wave just right. The latter is usually beyond the operator's control.

 Another lateral stability behavior which is not quite as common but has been observed in some testing has been a mushing of the boat in a turn. There has not been a popular name given to the behavior, but for our purposes, we will call it turn mushing. The boat does not quite "chine hook" but tends to trim down, and the steering gets less effective. This behavior seems to result fromoperating the boat with the engine trimmed in excessively.

 THE AMERICAN ADMIRALTY BUREAU HAS CARRIED OUT SEVERAL PERFORMANCE TEST SERIES WITH EXTENSIVE VIDEO DOCUMENTATION BOTH WITHIN AND OUTSIDE THE BOAT. A COMPREHENSIVE TEST SERIES WITH MEANINGFUL TEST PROTOCOLS WILL ISOLATE THE CAUSES OF THESE HULL BEHAVIORS. IF THE BOAT IS NOT AVAILABLE FOR TESTING, BEHAVIORS MAY BE ISOLATED THROUGH TESTIMONY, ALTHOUGH THIS IS A LESS SATISFACTORY METHOD.  

 There have been cases where the boat was alleged to have been overpowered. The powering standards in 33 CFR 183.53 relate only to outboard engine propelled boats of  20 feet overall length or smaller, where the horsepower is determined from a chart. This standard was developed decades ago. It matched the performance of the boat to the abilities of the average operator. Because demand for greater power (translate greater speed), performance testing was brought in to determine the maximum outboard horsepower rating for a boat. There is no similar standard for powering of either an inboard boat or a boat with inboard/ outboard drives.

THE AMERICAN ADMIRALTY BUREAU HAS FOUND THAT  ALLEGED OVERPOWERING  WAS OFTEN REALLY ONE OF THE DYNAMIC HULL BEHAVIORS DESCRIBED ABOVE. WE HAVE NOT FOUND ANY INSTANCE OF A BOAT BEING OVERPOWERED THAT WAS POWERED TO THE REGULATIONS UNLESS THE POWER RATING OF THE MOTOR WAS INACCURATE. MORE OFTEN THE EXECUTION OF THE OF THE DESIGN OF THE BOAT/MOTOR SYSTEM WAS SUCH AS TO PUT THE BOAT AT A SPEED WHERE THESE DYNAMIC BEHAVIORS CAME INTO PLAY.

Since the passage of the Boating Safety Act of 1971, outboard powered recreational boats sold in the U.S. are required to be equipped with transom plates which record maximum weight, passenger capacities, and maximum propulsive power expressed in horse power. When a consumer buys his hull from one vendor and his motor from another, or buys hull and motor from the same vendor but at different times, the responsibility and liability for not exceeding transom plate requirements falls to the consumer, provided the dealer does not know of the mismatch. Dealers may not knowingly sell a complete rig (boat and motor) powered in excess of transom plate requirements. Indeed cases where dealers have done this are exceedingly rare. The most common and thorniest issue is the boat ostensibly powered within transom plate requirements that none-the-less loses lateral stability while in a turn.  Such a case requires extensive forensic analysis and ultimate liability may fall to the motor manufacturer, boat manufacturer, boat and/or motor dealer or to the consumer or be apportioned among any or all of the aforementioned; depending on the actual cause of overpowering or auto turning as determined by forensic investigation.

 In some cases outboard motors have been found to be underrated as to horsepower. At first glance this might seem an uneconomic move on the part of a manufacturer but it can make marketing sense. If you've produced an anemic 65 hp motor it will sell poorly against higher performing motors of  the same horsepower  but will be classified as a high performer if sold as a 50 or 55 hp unit. Outboard motor manufacturers have long known this.  As a result the National Marine  Manufacturers Association (NMMA) holds its members to a standard rounding formula for advertised versus actual horse power. The NMMA  standard is plus or minus 5%. That is, an outboard motor marketed in the United States by a member company must have a tested actual horsepower not more or less than 5% of the horsepower advertised.

 THE AMERICAN ADMIRALTY BUREAU HAS FOUND THIS STANDARD TO BE REASONABLE AND ACCEPTS IT AS A TOLERANCE TO WHICH LIABILITY SHOULD NOT NORMALLY BE ATTACHED. WE HAVE , HOWEVER, ATTACHED FAULT ABOVE THIS STANDARD WHERE AN OUTBOARD ADVERTISED LABELED IN EXCESS OF THIS STANDARD WAS INSTRUMENTAL IN AUTO GENERATING A TURN RESULTING IN ACCIDENT AND INJURY AND THE ADVERTISED HORSE POWER WAS WITHIN THE REQUIRED MAXIMUM TRANSOM TRANSOM PLATE RATING, BUT THE ACTUAL MEASURED HORSEPOWER WAS IN EXCESS OF 5% ABOVE THE ADVERTISED HORSEPOWER. 

 In evaluating actual horse power the American Admiralty Bureau has actually conducted brake tests. American Admiralty Bureau Forensic Examiners who are graduate mechanical engineers may conduct and rely on any test of actual horsepower they choose so long as it is customary and acceptable to the mechanical engineering profession. American Admiralty Bureau Forensic Examiners who are licensed deck officers must rely on actual tests conducted by professional mechanical engineers or naval architects before addressing a court of record on this issue with any definitive findings.

WHERE, AFTER PROPER EVALUATION, BOAT AND MOTOR CORRECTLY MATCH TRANSOM PLATE REQUIREMENTS AND A CLAIM INVOLVES AN ALLEGED AUTO GENERATED TURN, A PROFESSIONAL EVALUATION OF THE STEERING SYSTEM SHOULD BE CONDUCTED, IF THE STEERING SYSTEM CAN NOT BE SHOWN TO BE THE CAUSE OF THE CLAIMED AUTO GENERATED TURN, PERFORMANCE TESTING IS MANDATED. 

 A steering system malfunction may mimic overpowering to the casual observer but must not be mistaken by the forensic examiner. Neither must the possibility that a steering malfunction operating in tandem with other factors such as engine trim, weight distribution or bow design be overlooked.  A steering malfunction can bring into a claim parties such as the steering system manufacturer; installer, if different from the dealer, and any repair organization that may have worked on the unit since delivery from the dealer.

  IF A STEERING PROBLEM IS DISCOVERED , BOTH SIDES OF THE DISPUTE MUST BE GIVEN AMPLE DISCOVERY OPPORTUNITY FOR EXPERT EVALUATION OF THE PROBLEM.  tHE PROBLEM OR CONDITION SHOULD BE EXTENSIVELY DOCUMENTED AND PHOTOGRAPHED BEFORE REPAIR.  USUALLY THE STEERING MUST BE REPAIRED BEFORE PERFORMANCE TESTING CAN BE BEGIN.

 Performance testing is designed to reveal any tendency of the boat to "slide" or lose lateral stability.  a performance test is described in 33 CFR 183.53.  Under the circumstances described in the Code of Federal Regulations certain manufacturers must use this test in determining transom plate ratings. If a boat and motor combination were subject to such test requirements and subsequent to sale to a consumer the boat and motor could not pass such a performance test, absent consumer after market modifications, liability will most likely be attributed to the manufacturer. Where the boat and motor are sold as separate units, the dealer who sells both has a special responsibility to properly and safely match the rig for the customer.

  AMERICAN ADMIRALTY BUREAU FORENSIC EXAMINERS MUST DETERMINE IF A RIG WAS SUBJECT TO SUCH TESTING.  HOWEVER, IN EVALUATING THE LATERAL STABILITY OF ANY BOAT EXAMINERS ARE NOT LIMITED TO THE TEST DESCRIBED IN REGULATIONS BUT MAY DESIGN ANY TEST TO FIT THE CIRCUMSTANCES OF THE CASE THAT CONFORMS TO ACCEPTABLE PROCEDURES RECOGNIZED BY EXPERIENCED TEST BOAT OPERATORS AND / OR NAVAL ARCHITECTS.

  A common scenario for litigation is a boat which is 20' 1" in length which is carrying more horse power it's 20" long comparable model. The longer boat is not subject to the Coast Guard rules for the testing of horsepower. There are other industry standards for outboard boats up to 26 feet in length which requires testing and the determination of safe maneuvering speed. This safe maneuvering speed is required to be posted on the dash and the boat must be equipped with a speedometer.

  THE AMERICAN ADMIRALTY BUREAU HAS FOUND THAT THE STANDARDS FOR POWERING ARE STILL EVOLVING AND THAT CAREFUL RESEARCH IS NEEDED FOR ALL OF THE STANDARDS IN EFFECT AT THE TIME OF THE BOAT'S MANUFACTURE FOR ANY GIVEN CASE.

 Allegations of overpowering, loss of steering and dynamic instability are design issues requiring extensive and complex forensic evaluation. The liability for such mechanical failures and miscalculations can be diverse. consequently attorneys handling such claims should seek expert assistance sufficiently early in the case to identify and properly join all responsible parties. Additionally an early start on expert evaluations is urged to preserve physical evidence and the condition of the vessel or its remains.

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CITE AS : AAB COM. NO.8, Vol 3 (1996-updated 2013) ISBN 1-879778-59-9

Copyright 1996 by American Admiralty Bureau, Ltd ALL RIGHTS RESERVED On Line update 2013 by derivative right.

THE POINT BEND CUSTOM ON THE WESTERN RIVERS

 Rule 9 of the Inland Rules (33 USC 2009) states:
   "(a) (i) A vessel proceeding along the course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway  which lies on her starboard side as is safe and practical.

 The most commonly seen exception to this rule is the "point bend custom" observable on the commercially used portions of the Western Rivers. The "Western rivers" for the purpose of this discussion refers to the Ohio, Mississippi, Missouri systems and other waters designated by the Secretary (of the department in which the Coast Guard is serving) .The "Point-Bend Custom" refers to the custom of vessel traffic to follow the bend of the river steering down stream and to head towards the point steering upstream in certain areas of the "Western Rivers". The custom evolved out of hydrodynamic necessity. Down bound tows of any appreciable size will tend to be set towards the bend by the river's current when attempting to round the bend. Up bound traffic steering towards the point not only avoids meeting down bound "sliders" but also gains the advantage of the slack water (known as "duck water") under the point for easier maneuverability and improved fuel economy. Of course hydrodynamic necessity creates some exceptions to the "Point Bend Custom". For example at Algiers Point in New Orleans, deeply laden ships must "dig out the bend" up bound. In many other places throughout the Western Rivers very large tows must "flank" the bends. In the flanking maneuver the bow of the down bound  tow may be placed very near the point as the entire flotilla ("tow") is brought to a stop. Utilizing the flanking rudders and astern propulsion the stern is brought around and the tow is then driven around the point. Once the drive is started the current catches the flotilla on the side and sets it at near current speed down towards the bend.  Pilots refer to this set as "falling towards the bend. Over the course of a flank a large tow will utilize virtually the entire water surface area between the point and the bend. Reflecting the reality of the hydrodynamic forces and technological considerations on the "Western Rivers" , Rule 9 of the Inland Rules provides a "Western Rivers" exception to the general rule to keep to your right:


     "(ii) Notwithstanding paragraph (a) (i) and Rule 14(a), a power driven vessel operating in narrow channels or fairways on the Great Lakes, Western Rivers, or waters specified by the Secretary, and proceeding down bound with a following current shall have the right-of-way over an up bound vessel, shall propose the manner and place of passage, and shall initiate the maneuvering signals prescribed by Rule 34 (a) (i) , as appropriate. The vessel proceeding up bound against the current shall hold as necessary to permit safe passing.

 Prior to the passage of the Inland Navigational Rules Act of 1980 (Public Law 96-591; 94 Stat. 3415, 33 USC 2001-2038  2071-2073) the Federal Fifth Circuit and some other Federal Courts accorded the "Point-Bend Custom" some official recognition.  More recent decisions appear to be eroding the application of the custom except where it occurs in compliance with section (a) (i) (i) of Rule 9. Canal Barge Co. v  China Ocean Shipping Co. [579 F.Supp 243 (EDLA 1984)] held that the "Point Bend Custom" is not a rule of law as a statutory requirement and its status under stare decisis appears to be eroding but  the custom is well rooted in the laws of physics and hydrodynamics. On those portions of the "Western rivers" where commercial barge traffic predominates it is well observed by the overwhelming majority of traffic including "light boats" (boats without tows) and very small tows. The custom promotes safe, fuel efficient and economic operations.

 ANY GROWING INSISTENCE BY THE COURTS THAT THE CUSTOM CAN ONLY BE UPHELD IN COMPLIANCE WITH SECTION (a) (ii) OF RULE 9 TENDS TO FORCE LIGHT BOATS AND VERY SMALL TOWS INTO A PATTERN THAT RUNS AGAINST TRAFFIC AND REQUIRES THEM TO CROSS THE RIVER IN FRONT OF DOWN BOUND TOWS.

  WHERE WESTERN RIVER HYDRODYNAMIC CONDITIONS OCCUR AND THE PREDOMINANT TRAFFIC CONSISTS OF COMMERCIAL TOWS THE SAFEST COURSE IS ADHERENCE TO THE POINT-BEND CUSTOM AT CERTAIN TIMES AND PLACES BY ALL TRAFFIC,

   It  is true that ..."big vessels may not insolently disregard smaller ones; superior size gives no right to domineer" [Wilson v. Pacific Mail, 276 U.S. 454]. But smaller craft do have a legal obligation to consider the plight of larger craft and avoid the embarrassment of their navigation  Consider the admonition to smaller craft in Rule 9(b) of the Inland Rules:

 " A vessel of less than 20 meters in length or a sailing vessel shall not impede the passage of a vessel which can safely navigate only within a narrow channel or fairway. "

  This specific duty of the smaller craft to avoid the embarrassment of the navigation of a larger craft in its ability to maneuver is, by application of Rule 2 of the Inland Rules known as "The General Prudential Rule"; much more general than just instances when the larger vessel is restricted to a confined channel. Adherence to the Point-Bend custom where physical and commercial traffic conditions warrant automatically keeps smaller craft out of the way of the majority of most larger craft. Decisions such as that in Marine Transport Lines v M/V TAKO INVADER [ 1995 AMC 622, 37 F3d 1138, 5 LA 1994] holding that "the down bound vessel's right of way does not entitle her generally to ignore the "stay to starboard" rule of  Rule 9 (a)(i), but rather entitles the down bound vessel to deviate from the default rule 9 *(a) (i) as circumstances require, should be very carefully considered . The circumstantial test indicated in this decision should be broadly enough construed to support the observance of the "point -bend custom" where ever the combination of hydrodynamic and commercial traffic conditions warrant.

  The "Point -Bend custom" is not universal on the Western Rivers. In some areas such as the lower Mississippi below Baton Rouge it is generally observed year round. The high water season with its swift currents often lasts more than seven months and the low water season in some years and the low water season  (minus 8 ft. on the Carrollton Gauge) often still generates relatively strong currents. In other areas the custom may be high water only. Elsewhere, behind certain locks and dams on pooled and buoyed  lake-like impoundments, the custom may not be observed at all. Where ever the predominant traffic consists of recreational boats with sufficient power to hull length ratios to avoid measurable set by the currents the custom is generally not in force. But where the traffic mix and currents physically dictate , these "special circumstances of the case " as envisioned by Rule 2 of the Inland Rules dictate that the custom be adhered to by all. Court decisions that ignore the physical facts when determining applicability of the "Point-Ben Custom" ignore Rule 2, history, and the laws of physics and hydrodynamics. Any such decision should be considered poor public policy, and reversible on its face as contrary to physical law. Arguments in favor of the applicability of the "Point Bend Custom" deserve careful analysis based on the totality of the evidence as to the physical and hydrodynamic characteristics of the applicable portion of the river, vessel traffic mix, and historic reliance on the custom in a particular area. In the existing case law there is no convincing precedent that can be applied over the vast areas of the Western Rivers on this issue to formulate a general rule. If anything, precedents on the issue points to a totality of the evidence test that is very site specific, and the possibility that changing river or traffic conditions could change the applicability of the custom at a specific site over time. Each application must be tested on its merits each time.

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CITE AS AAB COM. No. 9, Vol 3(1996-UPDATED 2013) ISBN 1-879778-59-9

Copyright 1996 by AMERICAN ADMIRALTY BUREAU, LTD ALL RIGHTS RESERVED Updated by derivative right.

 LIFE CRAFT FOR INLAND PASSENGER VESSELS

Editor's Note:  As of 2013 the Coast Guard has still not acted on this issue, one of the oldest outstanding National Transportation Safety Board Recommendations.

The  following comment is adapted from an article by Captain .James A. Wilson ,USCG (Ret.) and 
Commander Jack Deck, USCG (Ret.) first published in the March / April  1996  issue of WORKBOAT.
In early 1995 the U.S. Coast Guard introduced into the regulatory lexicon the acronym HCPV standing for High Capacity Passenger Vessel. A term they are now using in conjunction with large excursion and gaming vessels. Most of these vessels are regulated under subchapter H of Title 46 CFR and are approved for inland or near coastal routes. As indicated in an article in January / February 1996 issue of WORKBOAT the Coast Guard has formed a "national working group" on the problems of HCPVs.  The same issue of WORKBOAT informd us that the Passenger Vessel Association (PVA) is not happy about this development. The article noted that an unnamed PVA operator said "it appeared the Coast Guard suddenly realized it's unable to rescue everyone if all passengers must be rescued from a vessel". Mr. Pete Lauridsen, the PVA's technical consultant is quoted in the article as saying ; "Coast Guard has convinced themselves it is a thing to be very concerned about, and they want to do something about it."  Mr. Lauridfsen also indicated that the PVA doesn't think the vessels themselves are a problem. The Coast Guard's inability to "rescue everyone" became manifest during a SAR (search and rescue) drill in New Orleans around 1994, prior to the formation of the "national working group". In the exercise the mid river sinking of a gaming vessel was simulated. It was assumed that 250 passengers (simulated by the release of floats) had entered the water in life jackets. Even though a relatively rapid response was made by a large number of rescue platforms, fewer than one third of the floats were recovered after one hour. The river currents did not carry any of the simulated "passengers" ashore.

 This was an in-harbor event under near ideal rescue conditions with one exception. The  one exception was water temperature. Water temperature drives the concern for life craft on the inland passenger routes. For example, the temperature of the Mississippi River at New Orleans is usually below 45 degrees F all winter, even when the air temperatures are in the 70s (the water originates much farther north and some is ice melt). The Coast Guard's NATIONAL SEARCH AND RESCUE MANUAL states: "In the temperature range from 40 degrees to 50 degrees F, only about 50 percent of a group of survivors can be expected to survive longer than one hour." Water temperatures between 35 and 40 degrees F also impose severe conditions for survival; most survivors will not survive longer than one hour. Many survivors, particularly the old, those in ill health, or small children succumb within 15 minutes of entry into cold water. The concern for the Coast Guard's inability to "rescue everyone" is based on the facts of hypothermia as known by the Coast Guard's SAR establishment.

 Present (196 updated in 2013) passenger evacuation rules for both Sub-chapters T and H of Title 46 CFR vessels were formulated at a time when the cold water survival rate wasn't as well understood as today. Such rules were based upon the distance from shore and the response time to scene of would be rescuers. Moreover, at the time the inland excursion boat season was largely confined to the summer months. Today U.S. Coast Guard scientific tests and studies verify that subjecting passengers to water entry during much of the Fall, Winter, and Spring months is to condemn more than half  of them to death. The Coast Guard clearly wants to address this problem while the PVA  (Passenger Vessel Association) clearly wants to no new Coast Guard regulations. For the last 17 years the PVA has had their way. Regulatory considerations aside, the American Admiralty Bureau finds it reprehensible that any inland passenger vessel operating beyond summer months on anything but the nation's warmest waters should cruise with only a life jacket per passenger and a rescue boat. What we now know about hypothermia tells us that every passenger, regardless of route on other than tropical waters , should be provided with not only a personal flotation device , but a space in a suitable evacuation craft that keeps them out of the water. Regardless of the present regulatory status our official position is that while an operator who presently does not furnish life craft on the inland waters is probably in minimal regulatory compliance, it is not an adequate standard of care. Further, the appellate courts have held that ship operators owe a high standard of care to their passengers. Finally our position is perfectly in line with that of the National Transportation Safety Board (NTSB). The NTSB  has had a similar recommendation outstanding since about 1985.  NTSB Recommendation # 86-061 in the case of the Grounding of the U.S. Passenger Vessel PILGRIM BELLE on Sow and Pigs Reef, Vinyard Sound, MA June 28, 1985 contained the following language:


       "Require that all passenger vessels except ferries on river routes operating on short runs of 30 minutes or less have primary lifesaving equipment that prevents immersion in the water for all passenger and crew"

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CITE AS: AAB COM.No. 10, Vol. 3 (1996-updated 2013) ISBN 1-879778-59-9

Copyright 1996 by AMERICAN ADMIRALTY BUREAU, LTD, ALL RIGHTS RESERVED, Updated by Derivative right.

SAFE ACCESS AND EGRESS TO OCS MODUs AND PLATFORMS.


 A MODU is an acronym for Mobile Offshore Drilling Unit. MODUs float but are dynamically stabilized to the point that they are boarded and disembarked from in the same manner as offshore platforms fixed to the bottom. at present industry practice provides for three forms of access and egress to and from MODUs and OCS (Outer Continental Shelf) drilling and production platforms. These three systems of access and egress are: 

       1. Arrival or departure by helicopter

       2. Arrival or departure by boat with access or egress to or from the platform or MODU by personnel
             or "Billy Pugh" basket.

        3. Arrival or departure by boat with access or egress to or from the platform by "swing" or "Tarzan 
             rope".

 all three forms of access or egress are characterized by certain inherent dangers. The dangers associated with helicopter embarkation or disembarkation are routinely dealt with in the required "Orientation For Personnel Traveling Offshore For The First Time, available from the Petroleum Extension Service of the University of Texas at Austin.  They are further described and avoidance, mitigation techniques detailed in "HELICOPTER SAFETY AND SURVIVAL PROCEDURES published by the Petroleum Extension Service of the University of Texas at Austin in cooperation with the International association of Drilling Contractors. pilots generally brief passengers prior to boarding on the safest ways to approach, board, and disembark the helicopter. Helicopter access and egress under routine and emergency conditions is a main feature of most offshore survival courses that many offshore workers take. While a few helicopters in offshore service been lost with hands, in the history of the OCS industry these have generally been crashes in transit.  The American Admiralty Bureau has not seen any access or egress accidents related to routine helicopter operations on the OCS. Moreover examiners of the American Admiralty Bureau have logged many helicopter transits to OCS sites and believe that while this means of OCS work site access and egress is characterized by certain inherent dangers these are well managed and largely mitigated by instructional and managerial practices. We believe boarding an OCS platform or MODU by helicopter is the safest manner of access or egress and our first hand observations and the litigation record of this manner of transport suggests that it is as safe as it can be made to be so long as all concerned adhere to the well documented standardized procedures for access and egress. By contrast, our view of swing rope and personnel basket transfer is quite different. These methods of OCS work site personnel transfer have been the subject of numerous claims for personal injury and death. The effectiveness of the practice of the industry in managing the inherent dangers of these modes of personnel transfer is inhibited by economic factors. Plain and simply these methods often tend to be used in bad weather when helicopter transport may be severely limited or unavailable or with large groups of contractor personnel. Neither method's inherent dangers can be controlled in foul weather and as a custom of the industry these inherent dangers are not controlled even in fair weather. The inherent dangers of the awing rope and the personnel basket include: 

1. If personnel lose their grip on either device they have no where to go but in the water or back to the deck of the sending or receiving vessel with a high probability of injury.  While the dangers of water entry are somewhat mitigated by the common practice of wearing a ''work vest'' (inexpensive personal flotation device) the work vest may actually cause injury when personnel are dropped from a considerable height as is sometimes the case with personnel basket transfers. The use of personnel safety lines would probably make embarkation and disembarkation impossible in rough weather and would considerably slow down the transfer process and thus add to expense in fair weather. Personnel safety lines are simply not observed as an industry practice. This is an economic decision on the part of the industry. The use of such lines would eliminate this inherent danger but would materially limit the weather in which these transfer methods could be used and severely increase transfer time and expense in best of weather.

2. Both the swing rope and the personnel transfer basket utilize moving rigging subject to wear and eventual failure. While there are some rigging inspection programs observable in the industry there does not appear to be any standardization of such programs or even a standard to have such programs. Thus personnel utilizing swing ropes and personnel baskets have no assurance that the supporting and transfer rigging is sound.

3. The swing rope of the OCS is unique in the history of personnel transfer by rigging. It is the only example of personnel transfer rigging where the person to be transferred must support his or her entire body weight
by the strength of his or her entire body weight by the strength of their arms alone. In this the swing rope violates basic principals of personnel transfer by rigging taught to boatswains, steeple jacks, and professional riggers for centuries. It can only really be used as a steadying line for personnel stepping from the aft deck of a vessel  to the platform or MODU landing in calm water. The whole idea of swinging aboard while supported only by arm strength is without precedent in maritime commercial endeavor with the possible exception of 17th, 18th, and 19th century pirates and naval boarding parties. It's use by industrial from the mid 20th well into the 21st century is strictly driven by economic considerations of the platform or MODU owner. The worker, faced with transfer by these methods, has little choice. If the Tool pusher or boat captain decides that it is "safe enough" to use these methods the choices are to refuse under pain of unemployment or swing as directed .  The typical offshore worker will be confronted with this choice many times during the space of a year. Because of the unmitigated inherent dangers in personnel basket and swing rope transfer, and the economic underpinnings of the management decision to utilize these methods; examiners of the American Admiralty Bureau have consistently held that platform and MODU owners can never fully escape liability when injury occurs in transfers utilizing these methods. Such examiners have argued against the application of punitive damages where rigging was well maintained, weather was not a problem, precautions customary to the industry were followed, and an outside force such as a heart attack worked to the disadvantage of the worker being transferred. However, even in the event of a heart attack the worker becomes a victim of the unmitigated inherent danger of both systems. With no personnel safety line there is nowhere to go but in the sea or a hard fall to deck if the worker loses his grip for any reason. Moreover the worker has no real choice in the matter of access and egress so consequently even under the most benign of circumstances the platform or MODU owner must absorb some liability. This is especially true on the OCS in light of the following regulations. 33 CFR 142.4 is titled: "Duties of lessees, permitees, and persons responsible for actual operations" and it states:

"(a) Each holder of a lease or permit under the Act shall ensure that all places of employment within the lease area or within the area covered by the permit on the OCS are maintained in compliance with workplace safety and health regulations of this part and in addition , free from recognized hazards.

(b) Persons responsible for actual operations, including owners, operators, contractors, and subcontractors, shall ensure that those operations subject to their control are conducted in compliance with workplace safety and health regulations of this part and in addition, free from recognized hazards.

(c) 'Recognized hazards', in paragraphs (a) and (b) of this section , means conditions which are-
(1) Generally known among persons in the affected industry as causing or likely to cause death or serious physical harm to persons exposed to those conditions; and (2) Routinely controlled in the affected industry."


 The American Admiralty Bureau believes that the use of swing ropes and personnel baskets on the OCS is exactly such a "recognized hazard" as described in the regulations, the attempts to routinely control " the hazard (such as use of work vests, personnel briefings, (etc.) are often ineffective. Moreover, the OCS regulations recognize swing ropes only as a "secondary means of escape" [33 CFR 143.101 (b)] and formally require "sufficient personnel landings to assure safe "access and egress" [33 CFR 143.105]. Consequently any accident involving OCS facility access or egress by swing rope or personnel basket of the "Billy Pugh" (stand on, no enclosure, no personnel safety line) type may be viewed as a violation of portions of the OCS regulations described in title 33 Code of Federal Regulations and the plaintiff may invoke the Pennsylvania -Reyes doctrine. The examiners of the American Admiralty Bureau are directed to avoid statements that would indicate that OCS facility owners or operators are completely free of liability in accidents involving personnel transfer by swing rope or personnel basket. Such examiners may point out any contributory negligence by transferring employees and offer opinion on the physical condition of the equipment. They may also offer regulatory insight in line with the citations outlined above. See AAB Com.No.1 Vol.1, (1994-updated 2013); AAB Com. No.3, Vol.1, (1994-updated 2013); AAB Com. No.5, Vol.3, (1996-updated 2013); and 33 CFR 140-146.

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CITE AS: AAB Com. No. 11, Vol 3(1996-updated 2013) ISBN 1-879778-59-9 
Copyright 1996 by American Admiralty Bureau , updated by derivative right.

 LIVE BALLAST

  Examiners of the American Admiralty Bureau have had occasion to review cases involving the capsize of life craft ( and after 1996 some commercial excursion boats) requiring the precise placement of persons embarked for stability. The use of the placement of persons embarked for the enhancement of stability is referred to as "as live ballast". Examiners of the American Admiralty Bureau have also had the opportunity to travel extensively through the Gulf of Mexico offshore oil fields where we were able observe many abandonment drills. While this area has not been the subject of a great deal of litigation our field observations compel us to comment on the use of "live ballast" in life craft. In the case of saucer shaped covered life craft in common usage in the offshore oil fields seat belts are commonly observed attached to the assigned seating in each craft. Previously litigated cases have shown that these craft are at least somewhat dependent on the precise placement of :live ballast" for stability. In one case where the craft capsized, it did not return to an upright position as planned by the designer. The reason was that the "live ballast" was not secured into place by  seat belts. when the capsule rolled the live ballast went to the "new bottom", formerly the capsule overhead. The hatches were now under water. The "live ballast" drowned before the capsule could be righted . As late as 1996 examiners of the American Admiralty Bureau have observed abandonment drills utilizing identical and similar life craft where the persons embarked are never instructed to fasten a seat belt. We caution all offshore exploration and production companies to incorporate fastening of seat belts into all abandonment drills utilizing such life craft . We urge all lifeboatmen in charge to pay attention to this detail during drills. In examining future casualties involving concepts of live ballast examiners of the American Admiralty Bureau will be guided by the following principals:

1. Where seat belts are attached to assigned seating assume the life craft designer hs predicated stability at least in part to the positioning of live ballast.

2. Live ballast and seat belts are not presently (2013) subjects of  examination on U.S. Coast Guard lifeboatman certification exams or on any of the limited tonnage motorboat operator or master of passenger carrying vessels license examinations. Between 1996 and 2013 we were able top examine at least two open excursion boat capsize events that were caused by passengers changing position. No seatbelts were attached to the vessel's seating and the vessel operator didn't include any instruction s on the importance of remaining seated in the assigned seating in his required pre- getting under way passenger briefing. The same laws of physics were at work in these excursion boat capsize events as were at work in the earlier life boat events except that the excursion boats were open and passengers were ejected into the water not trapped in a rapid flooding enclosed space.  Because "live ballast" and seat belts etc. are not subjects of Coast Guard occupational licensing employers may not rely on the lifeboatman or excursion boat master or operator's status as  Coast Guard certified or licensed to impart this information. It must be taught by the company employing such life craft.

3. Where seat belts are provided, they must be used during every drill and every real launch.

4. as a design element, where live ballast placement is critical to stability seat belts should generally be provided in craft meant to be self righting.

5. In open , non self righting life craft(and excursion boats and other small craft) , even where live ballast placement is critical to stability the use of seat belts as a design feature is a matter of some controversy. Because of concern for holding people in position under water on non self righting craft present (2013) ABYC (American Boat and Yacht Council) seating standards do not reflect seat belt use. Each such case must be approached on the basis of the totality of the evidence.

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