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OCR for page 74
5
Legal and Regulatory Issues
The Coast Guard's authority to ensure the safe manning of merchant
vessels has two aspects. First, the laws governing the regulation of U.S.-flag
vessels are enforced by a certification and inspection process through which
the agency sets minimum manning levels and ensures that vessels adhere
to requirements over time. These statutes are effective impediments to
the adoption of new technology. Outmoded and over-specific, they make
it difficult for U.S. shipping companies to adopt the new technology and
manning innovations available to their foreign competitors.
Second, a number of international agreements affect manning. These
agreements, implemented by federal law, give the Coast Guard authority to
inspect foreign-flag vessels entering U.S. ports to ensure that they adhere to
international standards of operating safety. However, they do not provide a
consistent, internationally accepted method for determining safe manning.
The need for such a method will become more pressing with the worldwide
adoption of new ship technology and innovative manning patterns.
An ideal international framework for determining safe manning would
include (1) a universally accepted statement of principles setting forth
functional manning requirements, and (2) an objective, analytical process
for establishing minimum safe manning scales for vessels. Such a framework
would help each vessel's flag state set manning levels. It could also be
used by port states to ensure that all vessels entering their waters are
safely manned. Internationally dictated manning scales are not desirable,
however, since they would impose inappropriate standards on some ship
operators, and would tend to freeze innovation for others.
74
OCR for page 75
LEGAL AND REGULATORY ISSUES
SHIPPING ANI) CIVIL AVIATION:
CONTRASTING REGULATORY POLICIES
75
1b put both issues in perspective, compare the domestic and interna-
tional regulatory regimes of the maritime industry and the civil aviation
industry. Discussions of vessel automation and smaller crews often focus
on parallels between ships and commercial airliners, which are also increas-
ingly automated and have also reduced their crews in recent years. For
example, some concepts for highly automated vessels envision the bridge
as a variation of the airliner's cockpit, with the watch officer monitoring all
shipboard functions but rarely intervening in the steering or navigation of
the ship.
Under the current maritime regulatory system, such comparisons may
be more misleading than helpful. The two industries, as now constituted,
are radically different, not only in the extent to which they have adopted
new technology, but in the firmness and consistency and international
scope—of the laws and regulations that govern them. For the maritime
industry, taking advantage of the new technology available to it would
require a fundamental shift in its legal and regulatory foundations.
A comparison of the two industries illustrates the point:
.
Navigation of airliners is directed by a mandatory traffic control
system, which diminishes the human element in navigation decisions. Auto-
mated flight control systems further reduce the risk of human error. Ships,
on the other hand, depend entirely on the attentiveness and skills of their
crew members.
· Maintenance standards for airliners are higher than those for ships,
and more strictly enforced. Federal aviation regulators oversee precisely
specified and highly disciplined certification and maintenance procedures.
In the maritime world, on the other hand, maintenance standards are highly
variable, and federal regulation focuses on vessel performance rather than
specified maintenance procedures.
· Working conditions and hours of work aboard aircraft are strictly
limited by federal regulations and union work rules. Aircraft do not fly if
the available crews have not had the specified opportunity to rest. Aboard
merchant ships, current manning statutes as interpreted by federal courts
set no upper limit on the hours a crew member may work.
· Requirements for training and qualification of airline flight crews
are far more strict and standardized than those applied to ship's officers.
Airlines benefit, for example, from the military training that most of their
pilots have received, and from their own strictly certified and extremely
rigorous training programs. Flight crews are certified for the specific aircraft
type they fly, and are given rigorous physical examinations semiannually.
Maritime licenses are renewed every five years, and permit the operation of
OCR for page 76
76
CREW SIZE AND MAlUTIME SAFETY
nearly any type of vessel, without distinction. Aside from a color-blindness
test, given with license-renewal examinations, no physical qualifications are
imposed.
· The aircraft industry and its federal regulators spend generously
on research and development to improve safety. The ship building and
shipping industries, the Maritime Administration, and the Coast Guard
have extremely small budgets for such research- particularly the human
factors research that must undergird attempts to automate vessels.
Even in the civil aviation industry, the success of recent moves toward
automation has been questioned (Hughes, 1989~. Similarly, the safety of
vessel automation and attendant crew reductions should not be taken for
granted. A review of civil aviation regulatory policies, enforcement mech-
anisms and practices, and experience can provide constructive guidance in
determining the degree of oversight required for efficient, safe use of new
vessel technology.
THE STATUTORY BASIS FOR MANNING REGULATION
The laws governing the manning of merchant vessels have accreted
over many years, beginning in the early years of this century.) Unlike more
modern regulatory statutes (such as those governing commercial aircraft),
they do not include a broad statement of policy or goals, according to
which regulators may set standards. Instead, they prescribe a variety of
specific manning practices, derived from the technology of the steamship.
Notably, they require most shipboard workers to be divided into three
watches (although most crew members on modern vessels do not stand
watches); they forbid members of the deck and engine departments to
cross departmental lines in their work; and they fail to effectively limit crew
members' hours of wore
These provisions of the law, in their rigidity and specificity, leave little
room for innovation, and discourage the adoption of new technology or
more efficient manning practices. Furthermore, they place Coast Guard
safety regulators in the awkward position of trying to accommodate new
technology while adhering to the letter of manning laws that did not
anticipate that technology.
The manning statute does not prohibit crew reductions. Crew levels
aboard typical vessels could be lowered to perhaps 17 (from the low twenties
today) without violating the law (see Appendix F). But neither efficiency
1The manning statutes are codified in Part F of Subtitle II of Title 46, United States Code (46
U.S.C. § 8101-9308), entitled "Manning of Vessels," Chapters 81, 83, 85, 87, 89, 91, and 93. The
Coast Guard regulations that interpret and implement these laws are found in 46 CFR Part 15.
OCR for page 77
LEGAL AND REGUL-A TORY ISSUES
77
nor safety are served by the regulatory makeshift measures used by Coast
Guard officials and companies to comply with the antiquated statute.
Some see the watch-standing and work-assignment requirements as
protecting crew members from overwork by providing redundancy in the
shipboard work force. It would be far more efficient to provide explicit
protection against overwork and fatigue by authorizing regulatory limita-
tions on hours of work, leaving other work rules to be determined by
labor-management negotiation within the framework of a more rational
regulatory regime.
Key Provisions of the Manning Statutes
Watch-standing Requirements
The division of deck and engine personnel into watches has been
mandated by statute since 1915. The relevant statute (46 U.S.C. § 8104(d))
reads as follows:
On a merchant vessel of more than 100 gross tons . . . the licensed individuals,
sailors, coal passers, firemen, oilers, and water tenders shall be divided, when at
sea, into at least 3 watches, and shall be kept on duty successively to perform
ordinary work incident to the operation and management of the vessel.
This requirement has a strong effect on manning, because at least three
persons must to be assigned to any position in one of these watch-standing
categories. Aboard the typical ship of 30 or 50 years ago, powered by
steam boilers and turbines that required round-the-clock attention, this
requirement made sense. Today, with reliable, automated diesels, engine
room personnel work during the day and sleep at night, except in emergen-
cies. Aboard state-of-the-art European and Japanese ships, only the bridge
watch typically an officer or an officer and an unlicensed person stands
watches; everyone else works daytime shifts.
The watch-standing requirement of U.S. manning laws results in an
inefficient use of personnel. Courts have generally interpreted this require-
ment strictly, to require that even day workers be divided into watches,
so long as they fall in the job categories specified in the statute. (In a
few cases, however, courts have held that certain day workers may be
excepted from the watch-standing requirement; as explained below, this
exception has permitted the formation of nonwatch-standing maintenance
departments aboard some ships.)
Work Assignment Restrictions
/
Section 8104(e)(1) of Title 46, U.S.C., provides that a
seaman may not be (A) engaged to work alternately in the deck and engine
departments; or (B) required to work in the engine department if engaged for
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78
CREW SIZE AND MARrTIME SAFETY
deck department dud or required to work in the deck department if engaged
for engine department dud.
Again, this requirement, in its inflexibility, tends to discourage the adoption
of new technology.
Limitation of Hours of Work
Under 46 U.S.C. § 8104(d), a "licensed individual or seaman in the
deck or engine department may not be required to work more than 8 hours
in one day." Crew members may volunteer for overtime, provided they are
not coerced to do so. Courts have held that the existence of a collective
bargaining agreement specifying overtime standards makes overtime work
within those standards voluntary.
Thus, there is no effective limit on the hours a crew member may
work. This situation runs counter to the regulatory practice of any other
transportation industry. In practice, shipboard workers commonly work 10
to 12 hours a day, 7 days a weeL
THE NEED TO MODERNIZE SAFETY REGULATION OF VESSELS
Individually, the provisions of the vessel manning statutes may have
been rational reactions to the circumstances that gave rise to them. Col-
lectively, however, they deprive the Coast Guard and the shipping industry
of the flexibility needed to address manning of vessels in the light of new
technology, but do not provide adequately for safety.
As ship technology has advanced, the law's requirements have re-
mained static. Coast Guard safety regulators and vessel operators have
adopted innovations within the limitations of the watch-standing require-
ment, the departmental cross-over restriction, and other provisions of the
manning statute, but have been unable to take a comprehensive and con-
sistent approach to safety or the adoption of new technology.
The Maintenance Department:
A Regulatory Makeshift
An illustration of the problem is the development of the maintenance
department. As explained in Chapter 1, the Coast Guard has acquiesced
to the formation, aboard suitably equipped vessels, of nonwatch-standing
maintenance departments. The legal basis for this innovation can be found
in two court cases exempting certain personnel (those employed in posi-
tions not named in the watch-standing statute) from standing watch (see
Appendix F). In general, the Coast Guard has permitted crew members
engaged in routine maintenance, but not vessel operations, to be assigned
to maintenance departments.
OCR for page 79
LEGAL AND REGULATORY ISSUES
79
The establishment of maintenance departments can be seen as an at-
tempt to provide limited flexibility within the limits of an inflexible manning
statute. The Coast Guard has made it clear, for example, that shipmasters
may, at their discretion, use members of a maintenance department "to
augment navigational or machinery-space watches should circumstances
such as weather, mechanical failure, etc., require watch augmentation"
(see Appendix F). When used to augment watches, however, maintenance
persons become subject to the watch-keeping requirement.
Once a maintenance department is established, all personnel not re-
quired by the vessel's Certificate of Inspection (COI) can be engaged
as maintenance persons, and thus relieved of watch duty. Engine mainte-
nance persons required by the COI also can be assigned to the maintenance
department. With approval of the Coast Guard, three of the six ABsi (able-
bodied seamen) normally required by the COI can also be converted to
maintenance persons.
The legal basis for the maintenance department is regarded as tenuous
(see Appendix F). A more coherent regulatory statute would help avoid
such makeshift arrangements and place safety decisions on a firmer legal
and analytical foundation.
THE INTERNATIONAL MANNING REGIME
In addition to the safety requirements set by domestic law, all ships
must meet certain requirements set by international conventions. The
existing international agreements, however, provide no clear framework for
. . .
assessing mannmg Issues.
Thus, the United States has limited options available to ensure safe
manning of vessels that enter its ports. There is some anecdotal evidence
that the more flagrant manning problems in U.S. waters are aboard foreign-
flag ships (Bobb, 1989~. The U.S. Coast Guard has authority to take
corrective action in such cases, but lacks the analytical methods to exercise
this authority fully.
International Agreements Affecting Manning
International Maritime Organization
International agreements regarding seagoing vessels are negotiated
generally through the International Maritime Organization (IMO), a spe-
cialized agency of the United Nations. IMO's main objective is to facilitate
cooperation among governments on technical matters affecting interna-
tional shipping in the interests of safety and efficiency. IMO has special
responsibilities for safety at sea and for preventing pollution by ships of the
marine environment.
OCR for page 80
80
CREW SIZE AND MARITIME SAFETY
Much of IMO's work is devoted to producing and implementing in-
ternational conventions. These fall into three general categories: marine
safety, prevention of marine pollution, and liability and compensation.
Several conventions address most aspects of safety of life and property
at sea and prevention of pollution from ships:
· The International Convention for the Safety of Life at Sea (SO-
LAS), whose most recent version was adopted in 1974, is the fundamental
international maritime safety agreement. It contains technical standards
for safety surveys and certificates; subdivision and stability; machinery and
electrical installations; fire protection, detection, and extinction; life-saving
appliances; radiotelegraphy and radiotelephony; safety of navigation; car-
riage of grain and dangerous goods; and nuclear ships.
The International Convention on Load Lines (1966) contains stan-
dards for calculating freeboard and assigning load lines of ships. The intent
is to provide adequate reserve buoyancy for an intended voyage. The
convention also addresses requirements for vessel strength and stability.
· The International Convention for the Prevention of Pollution from
Ships (1973), modified by the Protocol of 1978 (MARPOL 73/78), contains
standards for surveys and certificates, control of operational pollution, and
minimizing pollution from tankers due to side and bottom damage.
· The Convention on the International Regulations for Preventing
Collisions at Sea, COLREGS, (1972) provides an international scheme
to enhance safety of navigation by preventing collisions between ships.
COLREGS contains general navigation rules and regulations; steering and
sailing rules; standards for lights, shapes, sound, and light signals; and
interpretive rules.
· The Convention on the International Maritime Satellite Organiza-
tion (INMARSAT) and its operating agreement, both of which entered into
force in 1979, established an organization and operational procedures to
improve maritime communications, thereby facilitating communications af-
fecting the safety of life at sea, the efficiency of ship management, maritime
public correspondence services, and radiotermination capabilities.
· The International Convention on Standards of Raining, Certifica-
tion and Watchkeeping for Seafarers (STCW), which entered into force
in 1984 establishes international minimum standards for crew qualifica-
tions. This agreement (which the United States has not yet ratified) estab-
lishes minimum mandatory standards for persons in charge of navigational
watches, engineering watches, and radio watch-keeping and maintenance,
and sets out special requirements for personnel on tankers and standards
for proficiency in survival craft.
OCR for page 81
LEGAL AND REGULATORY ISSUES
81
These international conventions address nearly all aspects of marine safety:
ship design, construction, equipment, operation, and the competency of
crews.
IMO has not to date addressed specific manning levels. The STCW
Convention specifies the qualifications of crew members and their watch-
keeping practices, but is silent about crew levels. Many shipping states
(including the United States) have requirements that exceed those of STCW
in many respects.
The SOLAS Convention addresses manning in Chapter V, Regulation
13, by stating that, governments "undertake measures for the purpose of
ensuring that, from the point of view of safety of life at sea, all ships shall
be sufficiently and efficiently manned." Following up on work at the IMO
that produced the STCW Convention, the IMO Assembly adopted Assem-
bly resolution N481(XII), "Principles of Safe Manning," in 1981. This
resolution urges IMO member governments to ensure that each seagoing
ship to which STCW applies carries a document specifying the vessel's
minimum safe manning. The nonbinding resolution also contains recom-
mended manning practices for bridge watches, mooring and unmooring,
and other shipboard functions. It does not specify the levels of manning
recommended, except in the case of bridge watches (in which case it refers
to the provisions of STCW and SOLAS).
IMO Resolution N647 (16), "IMO Guidelines on Management for
the Safe Operation of Ships and for Pollution Prevention," was adopted
October 19, 1989. It sets out suggested principles of safe management,
which have manning implications. Each company, it says, should estab-
lish a formal safety and environmental protection policy, with necessary
administrative staff. Vessels should be manned adequately for their trades
by suitably qualified seafarers trained in safety and pollution prevention by
appropriate emergency drills and other means. The resolution stresses that
a vessel's master has the overriding onboard responsibility for safety and
pollution prevention, and that companies should correct defects pointed out
by masters. It also recommends attention to guidelines and requirements
of classification societies and industry organizations.
The INMARSAT convention potentially affects manning by opening
the way for dependable and convenient maritime satellite communications.
Since INMARSAT terminals are more easily operated and considered
more reliable than conventional radio sets, their introduction has led to
calls for the elimination of radio officers on suitably equipped vessels. The
automated Global Maritime Distress and Safety System, which operates
through INMARSAT satellites, has lent further weight to these calls.
OCR for page 82
82
Intemanonal Labour Organ~sanon
CREW SIZE AD LIME SHEA
The International Labour Organisation (ILO) is a United Nations
body concerned with matters such as worker safety, compensation, and
conditions of employment. The ILO Convention Concerning Minimum
Standards in Merchant Ships (ILO 147) was adopted in 1976, and entered
into force internationally on November 28, 1981. The United States rat-
ified it in 1988, and it entered into force for this country in June 1989.
Only 20 of the 150 ILO members have ratified the treaty. This conven-
tion requires that member nations implement safety standards including
competency, work hours, manning, appropriate social security measures,
shipboard employment conditions, and shipboard living arrangements.
This convention is similar to IMO resolution N481(XII) (Principles
of Safe Manning) in that contracting governments must set their own
standards. The significance of the ILO convention, however, is that its
provisions are mandatory (flag states must set national standards) and con-
tain enforcement provisions (giving port states some enforcement authority
over vessels entering their waters).
Article 4 of ILO 147 allows a port state to rectify any conditions that
are clearly hazardous to safety, including insufficient manning. The U.S.
Coast Guard provided guidance to field offices for enforcing ILO 147 in
Commandant Instruction 16711.12, dated June 2, 1989.
Port State Control of Foreign-Flag Manning Practices
Port states have attempted to correct violations of international agree-
ments by vessels visiting their waters through port state control provisions of
international conventions. This practice of "port state control" of foreign-
flag vessels includes enforcement measures regarding unsafe manning prac-
tices.
Coast Guard Captains of the Port (COTPs) have the authority to
enforce safety requirements on foreign-flag vessels in U.S. ports. Under
the provisions of the Port and Waterways Safety Act of 1972 (33 U.S.C. §
1223), as amended by the Port and Tanker Safety Act of 1978 (33 U.S.C. §
1228), and the basic manning statute (46 U.S.C. § 9101), the Coast Guard
has clear authority to take action on unsafe manning practices. SOLAS
Regulation 13, Chapter V, requires flag administrations to ensure that their
ships are safely manned. Recently the IMO Maritime Safety Committee
approved an amendment to this regulation to require that safe manning
documents be issued by flag states to all vessels.
As a practical matter, the Coast Guard accepts manning levels estab-
lished by flag states as evidence of safe manning on ships entering U.S.
ports. However, the manning levels established by the various flag states,
OCR for page 83
LEGAL AND REGULATORY ISSUES
83
while theoretically based on IMO Resolution A-481, are not consistent.
Difficulties arise when a flag state issues a safe manning document and
a U.S. COTP believes the vessel is inadequately manned. To intervene
the Coast Guard must be able to justify rejecting the flag state's manning
assessment.
A similar situation faces other port states. For example, the Paris
Memorandum of Understanding is an agreement of 14 Western European
nations that establishes a coordinated port state inspection system. Its
guidelines for accepting safe manning permit questioning of flag states'
manning decisions. However, the members of the Paris agreement do
not have a uniformly accepted method for assessment. The development
of consistent manning criteria by flag states and consistent enforcement
authority by port states requires a universally accepted analytical method
for assessing safe manning. The IMO is the appropriate forum for resolving
this matter.
FINDINGS
U.S. manning laws, in their specificity and rigidity, do not conform to
modern regulatory practice, such as that in other transportation industries.
There is no overall statement of congressional intent to be interpreted
by regulators. Instead, there are specific manning requirements based
on outmoded technology and operating practices. These requirements-
notably the division of crew members into three watches, and the prohibition
of departmental crossovers provide inadequate protection of workers and
hamper the safe and efficient use of new technology.
As crew levels decline, these laws deprive the maritime industry of the
flexibility needed to best utilize the crew members assigned. The Coast
Guard, in an effort to permit technical innovation within the letter of
the manning laws, has adopted innovations such as the shipboard mainte-
nance department, which may be subject to challenge under differing legal
interpretations.
While the Coast Guard has the authority to examine manning levels for
foreign vessels entering U.S. waters and take exception where appropriate,
a more pragmatic approach would be to address this issue internation-
ally. Current international agreements already contain certain accepted
principles of safe manning. What is needed is an internationally accepted
analytical method for establishing and assessing minimum safe manning.
The United States should develop such a method for use domestically and
propose it at IMO for international acceptance. Chapter 4 discusses the
utility of such a method, and describes a committee-developed task analysis
model that could form the basis of such a widely applicable assessment
method.
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84
CREW SIZE AND MARITIME SAFETY
REFERENCES
Alaska Oil Spill Commission. 1990. Spill: The Wreck of the Exxon Valdez, Implications
for Safe Marine Transportation. Anchorage: Alaska Oil Spill Commission. January.
Bobb, John. 1989. Statement of the International Organization of Masters, Mates, and Pilots
on manning before the Marine Board of the National Research Council, Washington,
D.C. September 14.
Hughes, David. 1989. Glass cockpit study reveals human factors problems. Aviation Week
and Space Technology. August 7.
Lloyd's Register of Shipping. Provisional rules for the classification of shipborne navigational
equipment. London. September.
Representative terms from entire chapter:
safe manning
