A meeting of the US Maritime Law Association's Committee on Navigation, Coast Guard and Government Regulations was held at the law offices of Freehill Hogan & Mahar, 80 Pine Street, New York, NY at 9:00 AM on May 3, 2000. A list of attendees is attached to the original of this report as Exhibit A.

The meeting was opened by Committee Chairman Robert Parrish of Jacksonville. The first order of business was the introduction of the new Committee Chairman, Dennis Bryant of Washington; the Vice Chair, Tony Whitman of Baltimore; and the Committee Secretary, Jeffery Moller of Philadelphia. Mr. Bryant conducted the balance of the meeting. A copy of the agenda of the meeting is attached to the original of this report as Exhibit B.

The first order of business was the extension of appropriate congratulations and thanks to Mr. Parrish for his two years of enthusiastic and effective leadership. It was noted that President McCormick would be presenting Mr. Parrish with a certificate from the MLA in recognition of his outstanding level of service. Mr. Bryant welcomed distinguished guests from the Coast Guard, Captain Malcolm J. Williams, Jr. and Lieutenant Daniel J. Goettle. Both Mr. Parrish and Mr. Bryant mentioned that Captain Williams would be retiring from the Coast Guard, effective June 30, 2000 and each extended the thanks of the committee for Captain Williams' willingness to participate in all levels of committee activity during the course of his service as Chief of the Coast Guard's Maritime and International Law Division.

Captain Williams spoke at length upon the first item on the agenda, the ramifications of the Supreme Court's decision in United States v. Locke. The Supreme Court has remanded the case to the Ninth Circuit for further proceedings. Issues pertaining to the breadth of interpretation of the Supreme Court's decision remain. The Coast Guard is of the belief that equipment regulation as pertaining to barges issued by the state would also be affected by the decision. Although the State of Washington would tend to disagree with this interpretation, the Supreme Court's reliance upon "conflict" preemption in addition to "field" preemption would tend to argue for a broader interpretation of the case. Attempts have been made to overrule the Locke decision by legislation, but those attempts have been defeated and there is nothing currently in the legislative "hopper" on the topic. [Note: Bills have since been introduced in both the Senate and the House of Representatives to overrule the Locke decision via legislation. The Committee will monitor these bills.]

Discussions took place with regard to the effect of the Locke decision on state ballast water control regulations. Captain Williams indicated that Locke would have limited effect because the federal ballast water control statute specifically allows state regulations and differs considerably from the provision of OPA 90 and the considerations of Locke. Larry Kiern of Washington reminded the members that OPA 90 does contain specific authority to allow the state to impose financial and liability schemes and that Locke did not touch that issue. Chairman Bryant also stated that the states have broad authority under OPA 90 to define or answer the question "how clean is clean". It was pointed out that the Locke decision casts some doubt on state ballast water regulations, such as in California, that attempt to mandate certain actions on vessels while located in foreign waters.

Mention was made of the fact that EPA recently slapped significant penalties upon several cruise lines operating in Alaska for violation of air pollution statutes relative to stack emissions. Apparently, the Alaska Department of Environmental Compliance had not been enforcing the air pollution regs in this regard due to budget constraints, so the federal EPA stepped in. This is just one area in which the EPA has been increasingly involved regarding regulation of the maritime industry. EPA also is very concerned about ballast water regulations. It was noted that there are no facilities for handling dirty ballast water in any port state other than Alaska and the EPA is getting increasingly concerned in this regard.

The issue of ballast water control is becoming increasingly important. Existing law is designed to reduce the risk of introduction of non-indigenous organisms (zebra mussel, et al.). A federal rule exists requiring vessels bound for the Great Lakes to make a complete exchange of ballast water at sea before entering the St. Lawrence Seaway. The ballast water issue has been taken up by the state of Michigan and, internationally, by the IMO. According to Captain Williams, the IMO working group has constructed a two-tiered regulation system. It was noted that not only ballast water but sediments and the hull itself can carry non-indigenous species.

Hull coating regulations continue to be a topic of discussion within the Coast Guard. The problem with antifouling marine hull coatings is that they purposely contain a toxin to keep barnacles, etc. from adhering to the sides of ships. The paradox was noted that when the prohibition of antifouling paint and the ballast water control regs are compared, more non-indigenous organisms adhere to the hulls of ships and are transferred to the foreign port than are transferred via ballast water. The hull coating issue is also being worked on by the IMO according to Captain Williams. Both the coating and the ballast water issues are being considered by the U.S. Society of Naval Architects and Marine Engineers.

Ocean dumping laws in the United States involve an inherent conflict, according to Captain Williams. MARPOL, as adopted by the U.S. Congress, allows under certain conditions the offshore dumping of operational waste generated in port. The federal Ocean Dumping Act, though, specifically requires the disposal in port of any waste generated in port. The Ocean Dumping Act requires a permit for dumping any port-generated waste at sea. The Coast Guard and EPA are working upon a "notice of policy" in order to iron out the conflict. The likely result, according to Captain Williams, will be that all waste generated in port must be disposed ashore prior to sailing. The practical problems involved with the ocean dumping law conflict were raised in two existing arbitrations. The charter party typically assigns port costs to the charterer, but the charterer often asks the owner to dispose of waste materials at sea. However, the owner's refusal to dump dunnage or tank washings at sea, for fear of violating the requirements of the Ocean Dumping Act, can cause the charterer to incur significant expense for in-port disposal.

The next item on the agenda was the issue of environmental crimes. Bob Parrish began the discussion by citing a recent case in Baltimore, apparently being handled by Tony Whitman, in which the federal authorities arrested and handcuffed a Greek master as a result of an internal leak within a vessel which resulted in no spillage of oil. In defense of the Coast Guard and FBI positions, Captain Williams indicated that the Master had apparently lied to enforcement authorities and had failed to note certain oil transfers in the oil record book. According to the existing Commandant's Instruction regarding the enforcement of environmental crimes, any lying or falsification of records raises the concern of federal enforcement officials to a significant extent.

One significant difficulty in this area is counseling clients with regard to cooperation with investigating authorities. Maritime practitioners are advised to promptly elicit the assistance of criminal defense lawyers to assist in the investigation of any environmental problems, whether actual or threatened. It is good to consider that several layers of criminal defense representation may be required since the interest of the corporation, executives within the corporation, and affected personnel may all be significantly different. A further note of caution was sounded by Mr. Parrish. The Department of Justice has sometimes sought to indict counsel to criminal defendants as co-conspirators, particularly where falsification of records or testimony is suspected. The attorney-client privilege has been literally trampled by this development, in which lawyers have been indicted by grand juries, their notes of conversations subpoenaed, and their testimony required. Apparently, this tactic began with the Bush administration's war on drugs and has been expanded ever since. Chairman Bryant pointed out a recent article in the ABA Journal with regard to the Valu-Jet case in which the vice-president of the maintenance company was indicted. Reference was made to what is known in the DOJ as the "Eric Holder" memo which lays out the DOJ's policy with regard to demanding the attorney's notes of interviews with witnesses. Past Chairman Patrick Bonner of New York relayed that the Department of Justice has been holding closed conferences in various cities in which encouragement is given to U.S. Attorneys to give further consideration to criminal actions in environmental matters.

Mention was made of the PORTS initiative and the electronic charting proposal on the drawing board at NOAA. PORTS provides, in the few locations where it is presently installed, real-time tide, current, and related data via the Internet. Apparently, lack of funding has stalled both initiatives.

The issue of "critical habitats" for threatened and endangered species has become an important issue in the marine environment. The Endangered Species Act and its implementing regulations provide that it is a violation to "harm" or degrade a habitat which is critical to the survival of any threatened or endangered species. Therefore, any spilling of oil which has any effect on a critical habitat, such as Johnson's Seagrass in coastal Florida, is a violation of the Act even if no proof is presented that any member of a threatened species was actually or directly harmed.

Mention was made of the regulation of the liner industry in the post-OSRA era. Chairman Bryant pointed out that the FMC has recently approved penalties under OSRA against certain ship lines for having failed to submit true and accurate copies of their agreements. Since the anti-trust immunity allowed by the Shipping Act of 1984 is under frequent attack by cargo interests and ocean transportation intermediaries, the regulations which do exist will be strictly enforced by the FMC.

At the close of the regular agenda, Captain Williams identified his replacement as Captain Joe Ahern, currently the district legal officer in Miami. Captain Williams will be retiring on June 30th and Captain Ahern will take his position in August.

The meeting was thereafter opened up to the discussion of other issues. Larry Kiern took the opportunity to discuss recent legislative developments. He mentioned that the current version of the Coast Guard authorization bill contains two or three interesting provisions. The first and potentially most important, is the increase of the maximum penalty for negligent operation from $1,000 to $25,000 per incident. This would give the Federal Boat Safety Act (FBSA) a lot more juice than it currently has. It is noted that the Coast Guard frequently relies upon the FBSA's negligent operation provisions in bringing enforcement actions against non-licensed mariners. It has also been used against operators of foreign ships in U.S. waters. The current authorization bill also includes a provision to extend jurisdiction of the Bridge-to-Bridge Radiotelephone Act to 12 miles. It also contains a provision which would increase the Coast Guard's borrowing authority from the Oil Spill Liability Trust Fund from the current level to $100 million per year. This may have the effect of making the Coast Guard less hesitant to expend funds in its efforts to prevent or clean up oil spills. This could in turn impact the pocketbook of the spiller or responsible party who is ultimately required to replenish the Fund.

Chairman Bryant mentioned that the Coast Guard is proposing to define limited liability companies for coastwise citizenship requirements in a different way than they currently do. Currently, the 75/25 U.S. citizenship definition applicable to corporations is applied to most LLC's. The Coast Guard, however, is intending to treat LLC's as partnerships, which would have the effect of requiring all members of the LLC to be U.S. citizens.

Captain Williams handed out an outline, a copy of which is attached to the original of this report as Exhibit C, which lays out the current agenda of the IMO legal committee. Among the topics on the agenda are the Draft Bunkers Convention, reconsideration of the Athens Convention, wreck removal and a joint project between the IMO and the ILO pertaining to crew abandonment problems.

Also discussed at the meeting were the current proposals in the New York state legislature of requiring ship docking masters to obtain state pilot licenses. The issue was raised at the request of Bucky McAllister of New York, senior counsel to McAllister Towing, which opposes the proposal. The concerns of tug companies and foreign shipping companies, who would be most affected by the statute, is that the shipping company will lose the opportunity to make a selection of a docking master based on merit. According to Mr. McAllister, if the docking master function is regulated by state law, they will be forced to utilize either the state harbor pilot or the state docking pilot which first "speaks" the vessel.

The docking master is essentially a creature of only certain ports on the east coast, specifically Baltimore, New York, Philadelphia and Savannah. In most other ports in the country, the docking is done either by the ship's captain or by the state licensed harbor pilot who had piloted the vessel to that point. Traditionally, in the noted east coast ports, particularly since World War II, state pilots have stepped aside in favor of the docking master who has a federal, but not a state license, who assumes the conn of the ship for docking purposes. In many ports, the docking master conducts intraport movements from anchor to dock or from dock to dock. The docking function on ships was not being conducted under the authority of the federal pilot license so the Coast Guard did not have enforcement authority and was not being conducted pursuant to state license because the state did not have enforcement authority over the federal license.

This topic was further discussed at the meeting of the Pilotage Subcommittee which took place after the break-up of the main meeting. Mr. McAllister has not sought specific assistance or interpretation from the main committee but merely wanted to raise the issue for the members of the Association, and by extension, their shipowning clientele.

Respectfully submitted,

Dennis L. Bryant, Chair