The U.S.-Flag’s Real Shades of Gray [OP/ED]

By Klaus Luhta, KlausLuhta.com

If you are looking for some licentious and lascivious reading relating to shipping, look no further than the Paris MOU list of vessel registry rankings.  The greatest obscenity of the rankings is the United States demotion from the white list to the gray list.  At first glance the demotion is nothing short of disastrous.  To make matters worse, the U.S. Coast Guard Chief of Commercial Vessel Compliance published a knee-jerk commentary on the ranking blaming “U.S.-flag vessel owners and operators” and said the ranking was “illustrative of a decline in registry performance.”  The author of those comments is incorrect on a number of counts and the maritime unions took umbrage with the Coast Guard’s unfair characterization.  Here are the real facts.

Flag registries ensure vessels operating under their country’s flag comply with current international regulations ranging from size of crew complement to the size and number of fire hoses required on deck as well as everything in between.  A flag like the United States is a registry that actually has its government overseeing regulatory compliance.  In the U.S. this task is managed by the U.S. Coast Guard, the same body that is publicly admonishing the U.S. flag fleet.  Under a “Flag of Convenience” registry like the Republic of the Marshall Islands, for example, there are a few people in cubicles in Virginia performing the same work that the Coast Guard does for the United States.  Where the United States has a vested national interest in proper regulatory compliance of its fleet, the Republic of the Marshall Islands has very little, if any, direct involvement in the regulatory process.

The Marshall Islands flag registry is merely a business.

The Marshall Islands, for the sake of continuing the illustration, has an interest in ensuring the vessels flying its flag comply with regulations because it reflects well on the registry, which in turn means more ships that want to fly that flag, which generates more revenue.  As a result, the regulations tend to be simple so that compliance is easy.  Development of the regulations occurs quickly.  On the other hand, the United States regulatory process is cumbersome and complicated.  The unfortunate outcome is that compliance becomes difficult.

Enter the Paris MOU rankings. 

Think of them this way.  The white list means your vessels operate efficiently and safely.  The conditions on board are satisfactory and your vessels are structurally sound.  The black list means your ships are rusty clunkers with rag-tag crews that can barely cross an ocean.   The gray list is somewhere in between.  Somehow the United States went from the white list to the gray list and now joins the company of countries such as Egypt, Belize, and Kazakhstan.  While it is hard to believe Kazakhstan even has ships, it is more difficult to acknowledge that our great nation is lumped in with these other mediocre flags.  It is a black eye on the United States to be sure, but when we dig deeper we see that perhaps the ranking is not indicative of the true performance of the U.S. flag commercial fleet.

Of 174 U.S. flag vessels inspected by port state control regimes, seven were detained.  Of the seven detained, only one was a legitimate deep sea commercial vessel manned with a union crew.  And this one vessel, the APL Agate, was detained because the engine room was not clean and a security certificate had not been properly filed.  To be fair, this vessel had only recently transferred over to the U.S. flag from foreign operation.  The crew was still trying to bring the vessel up to U.S. standards and into compliance.  Here are the other six vessels:

MARIA BRUSCO – a tug detained in Canada for the certificates of master and officers “not as required.”  Given the U.S. Coast Guard approach to standards for tugs, this detention comes as no surprise.

BRENDAN J. BOUCHARD – another tug detained in Canada for certificates of master and officers “not as required.”

HOS SHOOTING STAR – an offshore supply vessel detained in Spain for International Safety Management not as required and missing a garbage management plan.

LORELEI – a vessel listed as “special activities” of only 99 gross tons detained in Italy for a laundry list of violations.  One has to wonder if this vessel really was a commercial SOLAS vessel that should affect U.S. flag white list status.

RYAN T – an offshore supply vessel detained in Spain for certificates of masters and officers invalid; crew certificates not endorsed by flag state.

TRANSATLANTIC – a general cargo ship detained for not having a Civil Liability for Bunker Oil Pollution Damage Certificate.  This ship is a low bidder for government cargo and operates with non-union crew.  This vessel is notorious throughout the industry for subpar compliance.  She is not typical of U.S. vessels in the commercial trade particularly because she does not use the more highly trained union mariners as crew.

It is easy to see that the Coast Guard remonstration of the U.S. flag industry is off the mark.  To assume the entire registry is in decline because of violations of a few subpar flag participants that are atypical of the broader commercial fleet is incorrect.  To publicly state as much is disingenuous and irresponsible.  Furthermore, the Coast Guard approach to regulation makes compliance with international rules extremely difficult.  To wit, the industry is still waiting for Coast Guard guidance on the new STCW work/rest hour requirements that came into effect January first of this year.

Let’s be clear; there is no gray area here.  U.S. flag commercial vessels with union crews continue to operate at the highest standards and set the mark for the international maritime community.  This has not changed simply because a few tug boats and small supply vessels were too complacent to maintain required paperwork and adhere to generally accepted standards.  To believe anything otherwise would be obscene.

Klaus Luhta is a graduate of the United States Merchant Marine Academy at Kings Point, New York and Cleveland-Marshall College of Law in Cleveland, Ohio.  He is a U.S. Coast Guard licensed Master and an attorney licensed to practice in Ohio and Michigan. Klaus has sailed all types of ocean-going vessels around the world for more than a decade before coming ashore to practice law in the areas of maritime law and consumer litigation.