A top U.S. Coast Guard official admitted at a recent congressional oversight hearing that the U.S. Coast Guard “has not been aggressively enforcing the compliance” of vessel response plans filed under federal Salvage and Marine Firefighting (SMFF) regulations. The rules, derived from the Oil Pollution Act of 1990, are meant to prevent a worst-case discharge resulting from fire or explosion aboard a vessel.
“The shocking admission by the Coast Guard that it cannot, and is not, enforcing its own marine firefighting rules should be a warning to all ship owners, P&I insurers and legal teams,” said Nicholas Nedeau, CEO of Rapid Ocean Response Corporation (ROR), which provides marine firefighting and emergency response services along the U.S. coast. “This is a disaster just waiting to happen and insurers should insist upon a dedicated network of fire-response vessels—instead of taking their chances on the current and risky ‘vessel of opportunity’ approach to emergency response.”
The admission was made at a May 3 public hearing of the House Subcommittee on Coast Guard and Maritime Transportation, when Coast Guard Rear Adm. Paul Thomas, Assistant Commandant for Prevention Policy, lamented that the Coast Guard doesn’t have resources to enforce its own rules. Chairman Duncan Hunter, R-CA, asked Thomas why vessel insurers don’t require that “the planning criteria really be performance criteria to save their asset?”
“I think one of the reasons, and I think that most of the panel members here would agree, is because the Coast Guard has not been aggressively enforcing the compliance,” said Adm. Thomas.
Congressman Hunter and ROR CEO Nedeau pointed out a serious deficiency—that the salvage industry doesn’t have dedicated vessels in place to respond in a timely manner to offshore fires. Hunter pointed out that when the 360-foot Grey Shark Motor Vessel caught fire off of New York Harbor in 2015 and burned for four days.
“The salvors didn’t put the fire out in the ocean, they brought it all the way back as it burned and then the New York Fire department put it out at the dock like they put out a house fire,” said Chairman Hunter.
Ships carrying massive quantities of petroleum and other flammables—not to mention toxins, dangerous chemicals, spontaneous combustibles and even nuclear materials—pose an unnecessarily high fire risk to Americans and the coastlines of major U.S. cities, according to a year-long assessment by ROR. The release of harmful radioactive materials and toxins into the air and sea, or a catastrophic oil spill after a ship fire, may be more possible than one might think because the U.S. Coast Guard has failed to enforce basic firefighting regulations since 2009.
Local tug boats are typically the only existing response vessels. They are usually not licensed for offshore operations, are often unavailable to respond because they are under contract to perform other jobs, and their crews are typically not certificated with the proper mariner licenses to operate offshore. Additionally, these tugs often are not located near their designated port when offshore accidents occur. Outside most major U.S. ports, there’s effectively a giant dead zone with no emergency fire coverage from about 3 miles to 50 miles from land.
“With the Coast Guard now admitting it doesn’t enforce its own SMFF regulations, the financial and legal risk to vessel owners and P&I insurers may be much higher than anticipated,” added Ryan Gilsenan, a maritime legal expert at Womble Carlyle in Charleston. “As an advocate for ship owners and operators, I am particularly concerned that if the current vessel response plans—although seemingly compliant on paper—result in an unduly delayed response, then the ship owner could be subjected to punitive damages, fines and other penalties for failure to comply with the SMFF regulations. A violation of regulations is a strict liability offense regardless of whether it was done so negligently, unknowingly or willfully. If this is the case, the responsible party may no longer enjoy limited liability under OPA 90.”
“If a fire were to break out today just a few miles off the coast of most metropolitan areas in the U.S., it could take days for fire rescue to come,” Nedeau said. “The consequences for the American population—and the insurance industry—are alarming.”