Seattle Maritime Law Blog : Seattle Maritime Lawyers & Attorneys : Mikkelborg Broz Law Firm : Collision and Salvage, Fisheries, Jones Act : Seattle, Washington

I recently addressed marine industry audiences in the Puget Sound region on the subject of the pending draft sVGP.

The draft VGP currently proposed will replace the current 2008 VGP when it expires December 19, 2013. The draft sVGP, once finalized, will authorize discharges incidental to the normal operation of non-military and non-recreational vessels less than 79’ in length. 

Presently, a Congressional moratorium exempts all incidental discharges, with the exception of ballast water from commercial fishing vessels and non-recreational, non-military vessels less than 79’ in length, from having to obtain a Clean Water Act permit until December 18, 2013. The sVGP would provide owners and operators with permit coverage for these vessels after that date. 

The 2013 draft VGP will continue to regulate 26 specific discharge categories that were enumerated in the 2008 VGP, and for the very first time authorize the discharge of fish hold effluent. This draft of the VGP now contains numeric ballast water discharge limits for most vessels and more stringent effluent limits for oil to sea interfaces and exhaust gas scrubber wash water. 

The EPA is also proposing to improve the efficiency of several VGP administrative requirements, including electronic recording keeping, an annual report in lieu of the one-time report and annual non-compliance report, and also requiring small vessel owners and/or operators to obtain coverage under the sVGP by agreeing to the terms of the Permit Authorization and Record of Inspection form. 

The sVGP is organized by discharge management categories to include: fuel management, engine and oil control, solid and liquid maintenance, gray water management, fish hold effluent management, and ballast water management. 

All vessels eligible under the sVGP will receive coverage at the time and date of the expiration of the moratorium, December 18, 2013. 

As a requirement of a permit, owners and operators must complete the sVGP Permit Authorization and Record of Inspection (PARI) form. Additionally, a permittee must conduct an annual self-inspection and certify having done so each year. 

The EPA is accepting comments on the proposed permits for 75 days after publication in the Federal Register (commenting deadline is February 21, 2012). Comments can be submitted:

• Online at:          http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OW-2011-0141-0001
• By email to:      OW-docket@epa.gov
• By mail to:    

Water Docket

U.S. Environmental Protection Agency

Mail Code 2822T

1200 Pennsylvania Avenue N.W.

 Washington D.C., 2046

  Attn: Document I.D. No. EPA-HQ-OW-2001-0141. 

Public meetings will be held on January 11, 2012 in Washington D.C., and January 23, 2012 in Chicago, IL.

For more information, see: http://www.epa.gov/npdes/vessels.

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In a close vote (280 to 246) Lake and Peninsula borough voters have approved an initiative to forbid the issuance of permits for the proposed Pebble Mine in Alaska.   The proposed Pebble Mine would be the world’s biggest gold and copper mine,  located in the watershed feeding into Lake Iliamna and the waters of Bristol Bay, Alaska, home of one of the world’s largest sustainable salmon fisheries and other important fisheries.   The proposed mine has created one of Alaska’s most polarized natural resource battles, pitting potential jobs against protection of one of the state’s most important fisheries and the environment.   Proponents of the mine are expected to challenge the initiative in court.  For the present, the vote is considered an important victory by fisheries and conservation interests. The Bristol Bay salmon fishery is a natural wonder that provides employment for thousands of people, both within and outside the State of Alaska, and needs to be protected and preserved.   

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In the recent case of One Beacon Ins. Co. v. Crowley Marine Servs., 2011 U.S. App. LEXIS 15620, the U.S. Fifth Circuit Court of Appeals recognized the incorporation by reference of terms and conditions found on a party’ website that imposed sweeping indemnity obligations upon the other party to the contract.  

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Is the future role of the Coast Guard’s National Suspension & Revocation Center of Expertise to keep a traveling legal staff to prosecute those holding a mariner’s license? 

The Coast Guard and U.S. Department of Homeland Security recognize the need for “targeted revitalization of technical competency and expertise within marine safety” in the maritime industry, and assert that the National Centers of Expertise (NCOE) will improve Coast Guard inspector and investigator competencies in the maritime industry, as well as insuring uniform application of regulations policy doctrine and Tactics, Techniques, and Procedures (TTP).  The Suspension and Revocation National Center of Expertise (SR NCOE) is located in Martinsburg, West Virginia.

There are more than 200,000 credentialed merchant mariners for which the Coast Guard is charged to ensure their competency and professional conduct, that mariners have not acted beyond the scope of their licensed authority or acted negligent in their responsibilities.  The Coast Guard can and does reprimand, following a hearing, licensed mariners to ensure they possess the necessary skill, experience and character to protect the life and safety of those at sea.  According to a Defense Media Network posting, more than 600 mariner complaints are looked into annually by Coast Guard Investigating Officers (IOs).  The SR NCOE Center is currently staffed by six individuals, one of which is an attorney, to assist the local Officer in Charge, Marine Inspection (OCMI) in presenting the Coast Guard’s case at a hearing on the suspension and revocation of a mariner’s license.  The IOs are assisted by both military and civilian employees assigned to SR NCOE. 

The SR NCOE and OCMI investigate potential violations of law, negligence, misconduct, unskillfulness, incompetence or misbehavior of persons holding merchant mariner documents, licenses, certificates or creditials issued by the Coast Guard and recommends SR pursuant to 46 USC 77when deemed appropriate.  The process begins by the Coast Guard’s issuance of a complaint against the holder of a Coast Guard credential; the Coast Guard submits evidence to support the allegations of its complaint; the respondent/license or credential holder may submit evidence in rebuttal or mitigation to an administrative law judge.  The judge renders a decision on the basis of evidence adduced at a hearing and the law, and renders a decision to the respondent.  In the case where an appeal is made by either party, notice of appeal is filed in accordance with 33 CFR 20.1001(a).   Supplementary information and regulatory information can  be found in the Federal Register's article regarding Establishment of Suspension and Revocation of National Center of Expertiseand discussion of the rule setting forth the technical changes to Titles 33 and 46 of CFR in establishing SR NCOE and can be found at 33 CFR 1.01-20 and 46 CFR 1.01-15.

The Coast Guard and the Department assert that in broadening the Coast Guard’s team to handle suspension and revocation cases, this new team approach will not affect the process or procedure in prosecuting a mariner.  That remains to be shown from the perspective of the licensed mariner meeting his or her burden of proof and mounting a defense to the charges alleged against his or her license or credential.

SR NCOE Section 1.01-25 has also been updated.  46 CRF 1.01-25(c)(1)(i)now reflects that either party, the Coast Guard or the respondent mariner (license holder), may appeal an Administrative Law Judge’s decision (former paragraph 1.01-25(c)(1)(i) only addressed appeals filed by the respondent license mariner).

Licensed mariners should be generally made aware of the existence and role of the SR NCOE and its support role and expertise provided to the OCMI. 

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Washington’s boating under the influence (“BUI”) law is governed by RCW 79A.60.040, which has many similarities and differences to Washington’s driving under the influence law ("DUI"). Because taking the boat out and having drinks on the water has become a way of relaxing for many, it is wise to be aware of the laws governing drinking on the water:

Although drinking alcohol is not illegal on the boat, the operator is required to be under the legal limit. The laws governing boating under the influence law have many similarities to the current DUI laws in Washington, but it also has some distinctly different aspects. RCW 79A.60.040. Somewhat mirroring the DUI laws RCW 79.60.040 reads:

(1) It shall be unlawful for any person to operate a vessel in a reckless manner.

(2) It shall be a violation for a person to operate a vessel while under the influence of intoxicating liquor or any drug. A person is considered to be under the influence of intoxicating liquor or any drug if:

     (a) The person has 0.08 grams or more of alcohol per two hundred ten liters of breath, as shown by analysis of the person's breath made under RCW 46.61.506; or

     (b) The person has 0.08 percent or more by weight of alcohol in the person's blood, as shown by analysis of the person's blood made under RCW 46.61.506; or

     (c) The person is under the influence of or affected by intoxicating liquor or any drug; or

     (d) The person is under the combined influence of or affected by intoxicating liquor and any drug.

     The fact that any person charged with a violation of this section is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this section. A person cited under this subsection may upon request be given a breath test for breath alcohol or may request to have a blood sample taken for blood alcohol analysis. An arresting officer shall administer field sobriety tests when circumstances permit.

(3) A violation of this section is a misdemeanor, punishable as provided under RCW 9.92.030. In addition, the court may order the defendant to pay restitution for any damages or injuries resulting from the offense.

To What Vessels Does the Law Apply?

Both the state law and federal BUI regulations apply to all vessels, regardless of how small or however powered. In other words, the laws apply even to canoes, row boats and small inflatable boats. 

What is the Penalty for a BUI?

A major distinction from DUI law is that the violation of the BUI law is a misdemeanor in the State of Washington. This means that the maximum time in jail is 90 days and the maximum fine is $1000 dollars. RCW 9.92.030. However, it should be noted that if the arrest is made by the United States Coast Guard a larger fine can be imposed for violations depending on the circumstances. US Coast Guard website.   Additionally, a vessel operator under the influence of drugs or alcohol that causes death or serious injury can face a Class B and Class A felony. RCW 79A.60.050 and RCW 79A.60.060.

Will a BUI Affect a Drivers License?

Another notable difference between a DUI and a BUI is that there are no driver’s license sanctions for a conviction of a BUI.   With the phasing in of mandatory vessel operators permits, boaters could potentially face losing their boater permit, but this has not been implemented as a penalty yet.  This does not mean that it should be taken lightly by any means; it is still a criminal conviction and Law Enforcement has made recent efforts to aggressively seek out intoxicated boat operators.

Are Alcohol Tests Mandatory?

Breath and blood alcohol tests may be administered by officers, but unlike the DUI counterpart, there are no further legal penalties for refusing to take them. Due to the implied consent laws governing motor vehicle DUI’s, refusal to take the tests in a DUI situation results in automatic penalties (i.e. loss of drivers license for a year, increased mandatory jail time). For DUI’s, Law Enforcement officers are required to inform individuals of the consequences of refusing the alcohol tests. A refusal at this point results in more severe penalties and the refusal can be used against the individual in a criminal proceeding. Washington State has not implemented similar implied consent laws concerning BUI. This means that there is no additional legal consequence for refusal to take the alcohol tests, and a refusal cannot be used as evidence against the individual in a criminal proceeding.

However, if the BUI is enforced through the Coast Guard, a refusal can be used in evidence in an administrative proceeding, and the individual refusing the test will be presumed to be under the influence, effectively shifting the burden of proving innocence onto the individual. Further, a refusal to submit to testing can also be used as a factor for increasing the potential fine for the incident.

Do you have to take Field Sobriety Tests?

Additionally, field sobriety tests may be administered by officers “when the circumstances permit” (RCW 79A.60.040). Field sobriety tests administered to boaters face many difficulties and are therefore seldom used by law enforcement. The fact that a boat operator has been on the water and, most likely, out in the sun for a substantial period, greatly affects balance and coordination. The combination creates a situation where field sobriety tests could produce inconsistent results. These results are likely to be inconclusive in proving that a boat operator was legally unable to operate the vessel.

Taking Alcohol Tests, Drug Tests or Field Sobriety Tests – Practical Consequences:

Refusing to take alcohol or drug tests, or refusing to perform field sobriety tests may well result in unpleasant choices and consequences for the boater suspected of the BUI and his or her guests. If investigating law enforcement officers believe reasonable cause to exist to stop a boater for BUI they generally also have the authority to remove the boater and the boat from navigable waters.   Coast Guard officers are provided such authority by federal regulations and the Coast Guard generally works in close cooperation with local law enforcement in BUI enforcement initiatives, especially for public events that attract boaters. As such, it is not uncommon for law enforcement officers to advise boaters that if the boater refuses to submit to the requested testing they will be arrested, removed from the boat on suspicion of BUI, and the boat will be detained or impounded.   Note that if the boater takes the requested tests and any such tests are positive, the boater will most likely be arrested and charged with BUI, and the evidence against the boater will be much stronger.   As to the disposition of the boat following arrest of its operator, if another person on board can demonstrate that he or she is not under the influence and otherwise qualified to operate the boat, that person may be put in charge of the operation of the boat rather than detaining or impounding the boat. 

Even though the penalties for a BUI are not as severe as for DUI, being suspected of, or charged with, a BUI can certainly ruin a good day on the water, and lead to a lot of complication, trouble, substantial expense, fines and potential jail time. .   While arresting officers cite a multitude of circumstances to support their assertions of reasonable cause for belief that a boat operator was under the influence, the most common reasons are probably excessive speed, other unsafe boat handling practices, and observing the operator drinking while operating the boat. Be safe on the water, observe no wake zones, and avoid a potential BUI by always having a designated operator, who does not consume alcohol or drugs, operate the boat at all times.

This information is published for the general knowledge of the public and by no means should it be considered legal advice provided by Mikkelborg, Broz, Wells and Fryer, PLLC. Note that different statutes and regulations may apply to commercial vessels, vessels subject to inspection, vessels involved in a serious marine incident, and to personnel operating vessels under the authority of a license issued by the U.S. Coast Guard.

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In an opinion issued by the U.S. Court of Appeals for the Eleventh Circuit on July 8, 2011, in the case of Quail Cruises Ship Management Ltd. V. Agencia de Viagens CVC Tur Limtada, et.al., the court determined that a purchaser of stock of a foreign company that owned a commercial vessel could maintain claims in U.S. courts for securities fraud, maritime torts of fraud in the inducement, recklessness and negligence/negligent representation and common law claims for civil conspiracy to commit fraud in the inducement and breach of fiduciary duty. 

The case involved the sale of the M/V PACIFIC, better known as the Love Boat from television show of the 70s and 80s. According to the plaintiff, the vessel’s owners and managers deferred much needed maintenance on the vessel, influenced Lloyd’s Register North America, Inc. to provide favorable inspections, and misrepresented the condition of the vessel, in reliance upon which the plaintiff was induced to purchase the shares of the foreign company that owned the vessel. When the plaintiff later learned of the actual condition of the vessel, the law suit, based in large part on alleged securities fraud, followed. 

The opinion of the appellate court focused primarily on the jurisdictional basis for the maintenance of the lawsuit, i.e. whether there was a sale of securities that took place in the U.S. Nevertheless, the case also illustrates the increased liability exposure of those that choose to sell the ownership of the company that owns a vessel, rather than selling the vessel as a separate asset.   Normally, in an asset sale of a vessel, the principle of caveat emptor, or “buyer beware” applies. When a seller sells stock or other securities, state and federal securities laws apply to create far greater disclosure requirements on sellers.   While tax effects generally drive the decision of whether to sell stock or assets, the increased liability exposure in selling stock is a factor to be considered. 

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Washington State Senate Bill 5604 seeks to create clean water jobs through storm water pollution funding by adding a new chapter to Title 90 RCW, known as the "Clean Water Jobs Act of f2011."

New Section 2 describes the Legislature’s finding that activities that address storm water contamination generate significant job growth, particularly in the construction industry.  The Legislature recognizes that future expenditures for storm water remediation in the Puget Sound region will require billions of dollars in new investments, more than $250‑million will be needed to be spent by cities, counties, ports and the State’s Department of Transportation (“DOT”) each year.  The source of pollution is not a single physical point, but occurs wherever products containing these substances are purchased, consumed or used, so called non-point sources.  The Legislature has concluded that surface runoff of fertilizers, pesticides, and herbicides into water bodies damage the natural water ecosystems and create pollution.  The Legislature recognizes that control of pollutants and storm water runoff has occcured through the National Pollutant Discharge and Elimination System (“NPDES”) Phases I and II, including municipal storm water permits.  Impacts from these sources can be prevented or controlled through retrofit projects for existing infrastructure; however, current resources being devoted to offset direct burdens of waterways by pollutants are insufficent to meet existing needs and the funding burden is disproportionally born by fees levyed on individual developers and property owners.  As a result, the legistature has determined that imposing a fee on the first possession of toxic storm water pollutants that contribute to a non-point storm water contamination is appropriate.

New Section 4 proposes to establish a storm water pollution account created in the state treasury from all receipts from storm water pollution fees. 

New Section 5 imposes, beginning July 1, 2011, a storm water pollution fee on first possession of the following substances: Petroleum products, pesticides, herbicides, and fertilizers, a fee equal to 1% of the wholesale value of the toxic storm water pollutant.  The fee will be collected by the Department of Ecology (“DOE”) quarterly, and the DOE may delete or add toxic storm water pollutants to the list.  The storm water pollution fee charge would not apply to possession of fuel, any successive possession of a toxic storm water pollutant for which a fee has previously been paid or where a product is used for a personal or domestic purpose or in a dwelling. 

New Section 7 provides a credit against the storm water pollution fee charged for pollutants that are subsequently exported for sale outside the state or for fees paid pursuant to this chapter on the possession of fuel from the state.

New Section 4 sets forth how the DOE must distribute the monies annually from the storm water pollution account:  1) $75,000 to be provided to each local government to address contamination of storm water by toxic storm water pollutants; 2) $11‑million to be provided to the DOT for transportation infrastructure, however these monies are not to be used for contruction of storm water facilities associated with new road construction or new road alignment construction; 3) $3‑million to be provided as grants to non-profit organizations to develop storm water prevention and treatment technologies and assist businesses and governmental entities in testing, monitoring, adopting and implementing new practices and technologies; 4) Forty-five percent of the monies remaining after the above allocations to be distributed annually by the department through grants to local governments covered by the NPDES municipal Phase I or Phase II permits to mitigate or prevent contamination from toxic storm water pollutants (local government must provide 50% of the project matching fund);  5) Forty-five percent of the monies remaining after allocation of the above to be allocated annually by the DOE through grants to local governments for retrofit projects to address contamination of storm water by toxic storm water pollutants that directly reduce emissions that result in air deposition of toxins  from stom water pollutants.  Within this 45% allocation of monies for capital improvement projects greater than $1‑million, at least 15% of the labor hours are to be performed by apprentices;  6) The final 10% of monies remaining after distribution of the above are to be allocated to the highest priority projects based upon ecological and water quality benefits.  The stake holders and Department of Ecology are required to develop criteria for administering the program and ranking projects for funding based on water quality benefits and to assure that grants are awarded consistent with the prioritization of the 2020 Action Agenda.

Washington’s agri businesses are potentially facing greater regulation of surface water runoff containing fertilizers, pesticides and herbicides if this Bill is enacted into law to help fund the cost of mitigating the resulting contamination.

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The Notice of Proposed Rule on Inspection of Towing Vessels should be published later in July 2011. 

The Coast Guard Authorization Act of 2010 requires that a proposed rule be issued within one year of enactment to promote safer work practices and reduce casualties on towing vessels.  A new subchapter dedicated to towing vessels is added covering vessel equipment, systems, operational standards, and inspection requirements.  The Coast Guard is compelled to develop regulations appropriate to towing vessels and the industry.  This will increase costs of safety management systems, standards for construction, operation, vessel systems, safety equipment, and recordkeeping for existing and new vessels.  The Coast Guard is in the process of developing cost estimates for the proposed rule.

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