Understanding Legal Liability in a Subchapter M Environment
There is more to SubM than just attention to safety.
Protect yourself accordingly.
In today's environment, safety management systems for brown water
marine operators are standard industry practice, whether they
come in the form of the American Waterways Operators (AWO)
Responsible Carrier Program (RCP) or the Tanker Safety Management
Assessment (TSMA) framework developed by the Oil Companies
International Marine Forum (OCIMF) for liquid carriers. However,
with the full-fledged implementation of Subchapter M on the
horizon, individual company-established Towing Safety Management
Systems (TSMS) are expected to be the norm for the brown water
Subchapter M was enacted for the safety and protection of seamen
on vessels in navigation. The entire focus of Subchapter M is
establishing a "comprehensive safety system ... dedicated to
towing vessels." While this safety system, the TSMS, can be
tailored to meet the needs of each individual operator, a TSMS
serves the purpose of "establish[ing] policies, procedures, and
required documentation to ensure the owner or managing operator
meets its established goals while ensuring continuous compliance
with all regulatory requirements." Because Subchapter M mandates
what elements that must be included in a TSMS, questions will
arise with respect to a vessel owner's or operator's ability to
defend himself or herself in the event of a serious marine
Perhaps one of the greatest challenges that will be faced is that
affirmative defenses, once exercised routinely, likely will
become limited in both scope and application, and statutes which
once afforded protection may be rendered useless. As such, all
vessel owners and operators should expect certain legal issues to
arise in the context of civil litigation under the General
Maritime Law and involving personal injury or death, allisions or
- First, Subchapter M requires towing vessels which elect the
TSMS option to be "operated in accordance with the TSMS
applicable to the vessel." Thus, failing to adhere to the
vessel's TSMS may very well equate to a violation of the federal
regulation requiring compliance.
- Second, if a plaintiff proves the violation of a regulation
(or the TSMS) and some causal connection between the violation
and the injury, the vessel owner may well be absolutely liable.
This principal of law, embodied in the Pennsylvania Rule, has
been a part of federal maritime law since the United States
Supreme Court's 1873 ruling in The Pennsylvania.
- Third, the violation of a regulation which has any causal
relationship to the injury can result in the liability of the
employer and any contributory negligence on the part of the
injured employee will not be considered in the determination of
apportionment of fault.
- Fourth, a vessel owner will only be able to limit his
liability to the value of the vessel and her pending freight
under the Limitation of Shipowners Liability Act (46 U.S.C. App.
§30501 et seq), if he proves that he lacked privity or knowledge
of "the act or condition that caused the injury." Various
provisions of Subchapter M, generally under a TSMS, essentially
charge the ownership/management with knowledge and require
privity in the day to day operations of the vessel under the
TSMS. It thus may be argued that, by statute, the owner's or
operator's knowledge is mandated and privity may be implied.
In addition to the above legal issues, vessel owners will need
time to adjust to civil litigation in a new system of extensive
regulatory requirements. In most cases, they will have until July
20, 2018 to do so. However, we can expect discovery to become
even more onerous. With the enactment of Subchapter M, the U.S.
Coast Guard and industry hope not only to establish a
comprehensive safety program for inland towing vessels, but also
to ensure compliance with that program. As a result, with every
regulation and requirement of Subchapter M comes an additional
"compliance" regulation which mandates that the owner or managing
operator document, record, or preserve "objective evidence" of
its compliance with the regulation.
A brief overview of the proposed regulations reveals that, at a
minimum, vessels opting for the Towing Safety Management System
(TSMS) will be required to have and maintain on board the
substantial documentation establishing compliance. Much of this
documentation will be maintained in electronic format, making
discovery easier for plaintiffs. The concern is that the TSMS
will be a "roadmap" for plaintiffs counsel seeking to establish a
pattern of non-compliance with federal regulation (i.e., Sub M)
and a TSMS by a vessel operator or owner.
Finally, there is the issue of use of audits under Sub M for
civil litigation. In the time remaining before the deadline for
full transition to Subchapter M compliance, more attention should
be given to the possibility of extending the protection given to
Coast Guard accident reports to the documentation required to
comply with the TSMS option. Reports created by the Coast Guard
as part of a marine casualty investigation are protected by Title
46 of the United States Code.
Notwithstanding any other provision of law, no part of a report
of a marine casualty investigation conducted under section 6301
of this title, including findings of fact, opinions,
recommendations, deliberations, or conclusions, shall be
admissible as evidence or subject to discovery in any civil or
administrative proceedings, other than an administrative
proceeding initiated by the United States.
The marine casualties that require reporting include:
- death of an individual;
- serious injury to an individual;
- material loss of property;
- material damage affecting the seaworthiness or efficiency of
the vessel; and
- significant harm to the environment.
Extending the same level of protection to internal audit reports
under Sub M would encourage vessel operators to choose the TSMS
option. The TSMS option is designed to be a more efficient way of
towing safety management than relying solely on Coast Guard
inspections, and Congress should provide to internal audits under
Sub M the same protection as exists under 6301 for Coast Guard
investigative reports to encourage the implementation of an even
stronger and more proactive TSMS than a vessel owner or operator
would otherwise craft and draft.
These are only some of the legal issues that will likely arise as
vessel owners and operators enter into compliance with Subchapter
M. Therefore, when crafting a TSMS, owner's and operator's should
consider the legal ramifications of this new regulatory regime in
order that the TSMS can be properly tailored to their operations,
and thus drafted to as best as possible reduce exposure to such
risks liabilities imposed upon them under Subchapter M.
Mark Hebert is a Partner at Jones Walker LLP.
(As published in the April 2017 edition of Marine
Apr 19, 2017