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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
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 scopeof 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
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.
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
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.
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.
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.
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.
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,
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.
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.
