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Preliminary Assessment Letter( Non-pollution) Activity # 5752773
The U.S. Coast Guard charges seven counts for violation of Title 46 U.S. Code 8103 and seven counts for violation of Title 46 U.S. Code 8701.
Throughout the investigation conducted by the Marine Board, the foreign nationals aboard the EL FARO and EL YUNQUE were commonly referred to as members of a “riding gang”. Although repeatedly referred to as members of a “riding gang”, the legal statutes defining a “riding gang” and the legal requirements for “riding gang” members were not applicable to the EL FARO and EL YUNQUE.
Title 46 U.S. Code 8106 “Riding Gangs” allows U.S. freight vessels conducting international voyages to employ foreign nationals for the purpose of conducting certain permitted work. The EL FARO and the EL YUNQUE operated on a dedicated domestic voyage, solely transiting between two United States ports. As such, Title 46 U.S. Code 8106 was not applicable to either of these vessels. TOTE SERVICES, INC was required to adhere to applicable laws regarding the employment of U.S. citizens bearing merchant mariner credentials as outlined in Title 46 U.S. Code 8103 and Title 46 U.S. Code 8701.
Congress added the riding gang provisions to Title 46 in Section 312 of The Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241, 120 Stat. 516, 530. The intent of Congress in enacting the riding gang provisions was to level the competitive field for U.S. Vessels on international voyages. The Conference Report to accompany H.R. 889 stated that: “The conferees intend to allow for the employment of certain individuals on freight vessels on international voyages for extended periods qualifying as “riding gang members” without placing these vessels at a competitive disadvantage against similar foreign flag vessels.” H.R. CONF. REP. 109-413 at 71.
In 2017, the U.S. Coast Guard adopted Congress’ riding gang provision within the Marine Safety Manual, Volume III: Marine Industry Personnel, COMDTINST M16000.8B. The following provision expressing the view that “riding gangs” were only applicable to international voyages was added in the Marine Safety Manual, Volume III:
“Riding Gangs. (2017)
Section 312 of The Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241, 120 Stat. 516, added Section 8106 and amended 2101(26a) as well as 8103(j) and 10301(b) of Title 46, United States Code. These sections should be referenced interdependently as they are intended to commonly apply only to U.S. freight vessels on international voyages (H.R. CONF. REP. 109-413, at 70 (2006), as reprinted in 2006 U.S.C.C.A.N. 579, 592).” MSM III page B1-19.
While the above provision was not incorporated into the U.S. Coast Guard’s Marine Safety Manual, Volume III until after the loss of the EL FARO, it would be inappropriate to adopt a contrary position and apply Title 46 U.S. Code 8601 to a domestic voyage.
The EL FARO and EL YUNQUE were required to report and receive approval for all routine maintenance and repairs from their Classification Society, and to report and receive approval for all damage repairs affecting fitness to proceed to the U.S. Coast Guard to remain in compliance with the ACP, a condition of each vessel’s COI. These reporting and approval requirements are further outlined on Enclosure 5, NVIC 02-95.
On July 07, 2015, TOTE SERVICES, INC failed to notify and receive approval from the U.S. Coast Guard for repairs conducted to the primary lifesaving equipment, repairs affecting the vessel’s fitness to proceed, aboard the EL YUNQUE as required by ACP. Additionally, the Classification Society was required to be informed of the repairs completed to the primary lifesaving equipment.
During the period August 24, 2015 to September 28, 2015, TOTE SERVICES, INC failed to notify the U.S. Coast Guard of repairs conducted to the “main propulsion” boiler superheating piping and repairs to the port and starboard lifeboat davits aboard the EL FARO, repairs constituting damage repairs affecting fitness to proceed. Additionally, there were internal communications between the vessel and company discussing urgent repairs that needed to be made to various primary systems.
TOTE SERVICES, INC failed to maintain the vessels in accordance with their Certificates of Inspection and failed to notify and receive approval from the U.S. Coast Guard for repairs completed to the main propulsion and primary lifesaving equipment affecting the vessel’s fitness to proceed, which is a violation of Title 46 U.S. Code 3313.The U.S. Coast Guard charges three counts for violation of Title 46 U.S. Code 3313(a).
There were internal communication records between both vessels and TOTE SERVICES, INC discussing urgent repairs that needed to be made to the boiler system, repairs that had been conducted to essential emergency lifesaving systems
Page 2 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
2. During the period of August 18, 2015 through September 29, 2015, TOTE SERVICES, INC employed Mr. aboard the EL FARO, conducting conversion work.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
3. During the period of August 18, 2015 through September 28, 2015, TOTE SERVICES, INC employed Mr. aboard the EL FARO, conducting conversion work.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
- During the period of August 25, 2015 through October 01, 2015, TOTE SERVICES, INC employed Mr.
aboard the EL FARO, conducting conversion work.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-24
Evidence Desc: Passport
- During the period of September 01, 2015 through October 01, 2015, TOTE SERVICES, INC employed Mr.
aboard the EL FARO, conducting conversion work.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-20
Evidence Desc: Mr. Passport
Page 6 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
10. During the period of August 18, 2015 through October 01, 2015 the unlicensed seamen employed aboard
the EL FARO were not citizens of the United States, aliens lawfully admitted to the United States for permanent residence, or foreign nationals enrolled in the United States Merchant Marine Academy.
Exhibit Label: CG-7
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
Exhibit Label: CG-20
Evidence Desc: Mr. Passport
Exhibit Label: CG-21
Page 8 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
Evidence Desc: Passport
Exhibit Label: CG-22
Evidence Desc: Passport
Exhibit Label: CG-23
Evidence Desc: Passport
Exhibit Label: CG-24
Evidence Desc: Passport
11. During the period of August 18, 2015 through October 01, 2015, TOTE SERVICE INC failed to abide by the citizenship requirements laid out in Title 46 U.S. Code 8103 (b)(1)(A) by employing Polish Foreign nationals, in the capacity of unlicensed seamen.
Exhibit Label: CG-7
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
Exhibit Label: CG-20
Evidence Desc: Mr. Passport
Exhibit Label: CG-21
Evidence Desc: Passport
Page 9 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
- During the period of August 18, 2015 through October 01, 2015, TOTE SERVICES, INC was the operator of the EL FARO (O.N. 561732), a vessel subject to inspection under Chapter 33 of Title 46 of U.S. Code. Exhibit Label: CG-11
Evidence Desc: EL FARO COI
- During the period of August 18, 2015 through September 29, 2015, TOTE SERVICES, INC employed Mr.
aboard the EL FARO to conduct conversion work.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
- During the period of August 18, 2015 through September 28, 2015, TOTE SERVICES, INC employed Mr.
aboard the EL FARO to conduct conversion work.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
- During the period of August 25, 2015 through October 01, 2015, TOTE SERVICES, INC employed Mr.
aboard the EL FARO to conduct conversion work.
Exhibit Label: CG-7
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-24
Evidence Desc: Passport
Page 12 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-23
Evidence Desc: Passport
- Title 46 U.S. Code 8701(b) requires an individual engaged or employed aboard a merchant vessel of at least 100 gross tons, to hold a merchant mariner document issued by the United States.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
- During the period of August 18, 2015 through October 01, 2015, the foreign individuals employed aboard the EL FARO were not holders of a merchant mariner document issued by the United States.
Exhibit Label: CG-7
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
Page 14 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
Exhibit Label: CG-20
Evidence Desc: Mr. Passport
Exhibit Label: CG-21
Evidence Desc: Passport
Exhibit Label: CG-22
Evidence Desc: Passport
Exhibit Label: CG-23
Evidence Desc: Passport
Exhibit Label: CG-24
Evidence Desc: Passport
11. During the period of September 28, 2015 through October 01, 2015, TOTE SERVICE, INC failed to abide by the mariner documentation requirements established Title 46 U.S. Code 8701(b) by employing the Polish nationals, who were not holders of a merchant mariner document issued by the United States, aboard the EL FARO.
Exhibit Label: CG-7
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
Page 15 of 33
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
- During the period of August 24, 2015 to September 28, 2015, the EL FARO was enrolled in Alternate Compliance Program (ACP) in accordance with 46 CFR Part 8.440.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-13
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 2
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- During the period of August 24, 2015 to September 28, 2015, the EL FARO was classed with the American Bureau of Shipping (ABS).
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
- Per 46 CFR Part 8, vessels enrolled in the ACP are to comply with applicable international treaties and agreements, the Classification Society’s class rules, and the U.S. supplement prepared by the Classification Society and accepted by the U.S. Coast Guard.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-13
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 2
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- On August 24, 2015, TOTE SERVICES, INC ordered, via their internal corporate structure, “major” damage repairs, affecting the EL FARO’s fitness to proceed, to the main propulsion boiler superheating piping system.
Exhibit Label: CG-1
Evidence Desc: Email discussing plan to repair superheated steamline and boiler tubes on the EL FARO, August 23, 2015 Chief Engineer to shore.
Exhibit Label: CG-2
Evidence Desc: Email from EL FARO Chief Engineer discussing urgent repairs needed to EL FARO boiler system and subsystems.
Exhibit Label: CG-10
Evidence Desc: ABS Survey History EL FARO
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
- On August 24, 2015, TOTE SERVICES, INC did not notify or receive approval from ABS or U.S. Coast Guard for the major damage repairs made to the main propulsion boiler superheating piping system.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
Exhibit Label: CG-25
Evidence Desc: EL FARO MBI Transcript dtd 26 Feb 16, pgs 90-92, with ABS Assistant Chief Surveyor stating ABS was not made aware of repairs to a super heated steam line.
- On September 28, 2015, TOTE SERVICES, INC ordered, via their internal corporate structure, the replacement of two free wheel clutches on the port and starboard lifeboats.
Exhibit Label: CG-3
Evidence Desc: Service report from Harding regarding changing out davit winches for the EL FARO lifeboats. USCG MBI Exhibit 074 EL FARO.
Exhibit Label: CG-8
Evidence Desc: EL FARO MBI Transcript 26 Feb 2016 relating to repairs. Pg 73-83.
Exhibit Label: CG-10
Evidence Desc: ABS Survey History EL FARO
- On September 28, 2015, TOTE SERVICES, INC did not notify or receive approval from ABS or the U.S. Coast Guard for the maintenance and repairs conducted to the lifeboats.
Exhibit Label: CG-8
Evidence Desc: EL FARO MBI Transcript 26 Feb 2016 relating to repairs. Pg 73-83.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- Per the Alternate Compliance Program, described in 46 CFR 8.410 and 46 CFR 8.440, and further outlined in Navigation and Vessel Inspection Circular (NVIC) 02-95 page 33, Enclosure (5), routine maintenance and repairs and to be approved by the Classification Society.
Damage repairs affecting fitness to proceed are required to be approved by the U.S. Coast Guard and the Classification Society is required to be notified.
Exhibit Label: CG-8
Evidence Desc: EL FARO MBI Transcript 26 Feb 2016 relating to repairs. Pg 73-83.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- Per 46 CFR 8.440(b) and further outlined in NVIC 2-95 page 33, damage repairs affecting fitness to proceed required a recommendation from its Class Society and U.S. Coast Guard approval.
Exhibit Label: CG-8
Evidence Desc: EL FARO MBI Transcript 26 Feb 2016 relating to repairs. Pg 73-83.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- Failure to notify or receive approval from the U.S. Coast Guard or its Classification Society of any maintenance or repairs conducted on the EL FARO, especially repairs affecting fitness to proceed conducted on the main propulsion, is in direct conflict with the ACP and a violation of the terms and conditions on the vessel’s COI in accordance with 46 USC 3313(a).
Exhibit Label: CG-8
Evidence Desc: EL FARO MBI Transcript 26 Feb 2016 relating to repairs. Pg 73-83.
Exhibit Label: CG-10
Evidence Desc: ABS Survey History EL FARO
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Label: CG-14
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
- On July 07, 2015, the EL YUNQUE was enrolled in the Alternate Compliance Program (ACP) in accordance with 46 CFR Part 8.
Exhibit Label: CG-12
Evidence Desc: EL YUNQUE COI
Exhibit Label: CG-13
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 2
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- On July 07, 2015, the EL YUNQUE was classed with the American Bureau of Shipping (ABS).
Exhibit Label: CG-12
Evidence Desc: EL YUNQUE COI
- Per 46 CFR Part 8.440, vessels enrolled in the ACP are to comply with applicable international treaties and agreements, the Classification Society’s class rules, and the U.S. supplement prepared by the Classification Society and accepted by the U.S. Coast Guard.
Exhibit Label: CG-12
Evidence Desc: EL YUNQUE COI
Exhibit Label: CG-13
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 2
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
- On July 07, 2015, TOTE SERVICES, INC ordered, via their internal corporate structure, the damage repairs to two lifeboat engines that had filled with water and became non-functional.
Page 24 of 33
Preliminary Assessment Letter( Non-pollution) Activity # 5752773
Exhibit Label: CG-4
Evidence Desc: Email from the EL YUNQUE, July 2015 regarding repairs to the lifeboats on the EL YUNQUE relating to material flooding to the interior of the propulsion system of both boats due to weight testing using water filled boats.
- On July 07, 2015, TOTE SERVICES, INC did not notify or receive approval from the Classification Society or the U.S. Coast Guard of the repairs conducted aboard the EL YUNQUE’s primary lifesaving equipment.
Exhibit Label: CG-4
Evidence Desc: Email from the EL YUNQUE, July 2015 regarding repairs to the lifeboats on the EL YUNQUE relating to material flooding to the interior of the propulsion system of both boats due to weight testing using water filled boats.
Exhibit Label: CG-15
Evidence Desc: EL YUNQUE ABS Report
Exhibit Label: CG-26
Evidence Desc: Page 145-147 of transcript of testimony on 10Feb2017 by Mr. ABS Assistant Chief Surveyor, regarding repairs to EL YUNQUE lifeboat, who should have been notified, and what actions should have been taken.
Exhibit Label: CG-27
Evidence Desc: MISLE Activity Summary Reports for Inspection Activities from same time period when repairs were made to EL YUNQUE lifeboat by the crew. None of the reports indicate USCG inspectors had any knowledge of the lifeboat engine issues.
8. Per 46CFR8.440(b) and further outlined in NVIC 2-95 page 33, Enclosure (5), damage repairs affecting fitness to proceed required a recommendation from its Classification Society and U.S. Coast Guard approval. Exhibit Label: CG-12
Evidence Desc: EL YUNQUE COI
Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
Page 25 of 33
- During the period of August 18, 2015 through September 28, 2015, TOTE SERVICES, INC was the operator of the EL FARO (O.N. 561732), a vessel subject to inspection under Chapter 33 of Title 46 of U.S. Code.
Exhibit Label: CG-11
Evidence Desc: EL FARO COI
- During the period of August 18, 2015 through September 28, 2015, TOTE SERVICES, INC employed Mr.
aboard the EL FARO to conduct conversion work.
Exhibit Label: CG-9
Evidence Desc: Pages from EL FARO Hearing Transcript for Mr. as background relating to the safety of the Polish Riding Crew on the EL FARO. Mr.
disembarked the EL on Sept 29, 2015.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
- During the period of August 18, 2015 through September 28, 2015, while employed aboard the EL FARO, Mr.
did not receive sufficient familiarization training or instruction to be able to identify muster stations, lifeboat locations, or use of lifesaving equipment. Exhibit Label: CG-5
Evidence Desc: EL FARO Station Bill listing the duties of individuals and stations for emergencies, etc.
Exhibit Label: CG-9
Evidence Desc: Pages from EL FARO Hearing Transcript for Mr. as background relating to the safety of the Polish Riding Crew on the EL FARO. Mr.
disembarked the EL on Sept 29, 2015.
Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
- TOTE SERVICES, INC’s failure to provide sufficient familiarization training or instruction to persons assigned aboard a seagoing vessel is a violation of 46 CFR 15.1105 and further defined by Title 46 U.S. Code 3318(a).
Exhibit Label: CG-5
The Coast Guard has introduced the following exhibits:
- Exhibit Label: CG-26
Evidence Desc: Page 145-147 of transcript of testimony on 10Feb2017 by Mr. ABS Assistant Chief Surveyor, regarding repairs to EL YUNQUE lifeboat, who should have been notified, and what actions should have been taken.
Exhibit Desc:
- Exhibit Label: CG-20
Evidence Desc: Mr. Passport
Exhibit Desc:
- Exhibit Label: CG-21
Evidence Desc: Passport
Exhibit Desc:
- Exhibit Label: CG-22
Evidence Desc: Passport
Exhibit Desc:
- Exhibit Label: CG-23
Evidence Desc: Passport
Exhibit Desc:
- Exhibit Label: CG-24
Evidence Desc: Passport
Exhibit Desc:
- Exhibit Label: CG-5
Evidence Desc: EL FARO Station Bill listing the duties of individuals and stations for emergencies, etc.
Exhibit Desc:
- Exhibit Label: CG-6
Evidence Desc: Statements provided by the NTSB from the Polish Riding Crew’s spouse (deceased) in the form of completed questionnaires and translated by the U.S. State Department.
Exhibit Desc:
- Exhibit Label: CG-7
Evidence Desc: Contract employment for one of the Polish Riding Crew, Mr. who perished on the voyage. Including credentialing and employment certificates.
Exhibit Desc:
- Exhibit Label: CG-8
Evidence Desc: EL FARO MBI Transcript 26 Feb 2016 relating to repairs. Pg 73-83.
Exhibit Desc:
- Exhibit Label: CG-9
Evidence Desc: Pages from EL FARO Hearing Transcript for Mr. as background relating to the safety of the Polish Riding Crew on the EL FARO. Mr.
disembarked the EL on Sept 29, 2015.
Exhibit Desc:
- Exhibit Label: CG-10
Evidence Desc: ABS Survey History EL FARO
Exhibit Desc:
- Exhibit Label: CG-16
Evidence Desc: TOTE Services Inc Indoctrination Guidelines and Logs
Exhibit Desc:
- Exhibit Label: CG-11
Evidence Desc: EL FARO COI
Exhibit Desc:
- Exhibit Label: CG-12
Evidence Desc: EL YUNQUE COI
Exhibit Desc:
- Exhibit Label: CG-19
Evidence Desc: SANs Report San Juan to Jacksonville
Exhibit Desc:
- Exhibit Label: CG-25
Evidence Desc: EL FARO MBI Transcript dtd 26 Feb 16, pgs 90-92, with ABS Assistant Chief Surveyor stating ABS was not made aware of repairs to a super heated steam line.
Exhibit Desc:
- Exhibit Label: CG-15
Evidence Desc: EL YUNQUE ABS Report
Exhibit Desc:
- Exhibit Label: CG-17
Evidence Desc: Letters of Presumed Death for Polish Nationals who were on final voyage of EL FARO.
Exhibit Desc:
- Exhibit Label: CG-1
Evidence Desc: Email discussing plan to repair superheated steamline and boiler tubes on the EL FARO, August 23, 2015 Chief Engineer to shore.
Exhibit Desc:
- Exhibit Label: CG-2
Evidence Desc: Email from EL FARO Chief Engineer discussing urgent repairs needed to EL FARO boiler system and subsystems.
Exhibit Desc:
- Exhibit Label: CG-3
Evidence Desc: Service report from Harding regarding changing out davit winches for the EL FARO lifeboats. USCG MBI Exhibit 074 EL FARO.
Exhibit Desc:
- Exhibit Label: CG-4
Evidence Desc: Email from the EL YUNQUE, July 2015 regarding repairs to the lifeboats on the EL YUNQUE relating to material flooding to the interior of the propulsion system of both boats due to weight testing using water filled boats.
Exhibit Desc:
- Exhibit Label: CG-18
Evidence Desc: Ship Arrival Notification System (SANS) Report listing the crew onboard the final voyage of EL FARO.
Exhibit Desc:
- Exhibit Label: CG-27
Evidence Desc: MISLE Activity Summary Reports for Inspection Activities from same time period when repairs were made to EL YUNQUE lifeboat by the crew. None of the reports indicate USCG inspectors had any knowledge of the lifeboat engine issues.
Exhibit Desc:
- Exhibit Label: CG-13
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 2
Exhibit Desc:
- Exhibit Label: CG-14
Evidence Desc: NVIC 2-95 Change-2 Alternate Compliance Program Page 33
Exhibit Desc:
| Email: HQS-SMB-CGHO- | ||
| TOTE SERVICES, INC | Response@USCG.MIL |
Commandant (CG-094H) 2703 Martin Luther King Jr. Ave
Coast Guard Hearing Office Washington, DC 20593-7794
Phone:202-795-6240
Fax:202-372-8422
Toll-free: 1-866-801-6178
10550 DEERWOOD PARK BLVD SUITE 602 Activity No. 5752773
JACKSONVILLE, FL 32256 Party: TOTE SERVICES, INC
Date of Violation: August 18, 2015
Subject: EL FARO
Amount: $39,200.00
Date: May 02, 2019
Re: Preliminary Assessment Letter (PAL)
Dear Sir or Madam:
In my capacity as a Coast Guard Civil Penalty Hearing Officer, I have received a report alleging that you, as operator of the EL FARO, are liable for a civil penalty for violation of Federal law as described on the Charge Sheet enclosure.
The Coast Guard’s civil penalty procedures are contained in Subpart 1.07 of Title 33 of the Code of Federal Regulations (33 CFR 1.07). My role is to determine whether there was a violation. If I find that there was a violation, I must then decide what civil penalty, if any, is appropriate. The maximum civil penalty that may be assessed in this case is $57,528.00. Based upon the information in the case file that I have, it appears to me that a violation did occur and that a civil penalty of $39,200.00 is appropriate. However, I will not make a final decision until you have had an opportunity to respond.
You have 30 days from receipt of this letter to take one of the following actions [See Enclosure (4)]:
- You can submit evidence in lieu of a hearing.
You can pay the proposed penalty now thru www.pay.gov.
- You can set up a payment plan by calling our collections department at (510) 437-3644.
- You can request a hearing in writing and submit what you want to raise and dispute at a hearing.
If necessary, you may request an extension to respond to this letter in writing. Your request should explain why you need additional time to respond, and should be submitted as soon as possible. If you fail to request a hearing in writing within 30 days of receipt of this letter, you will lose your right to a hearing. Furthermore, if you fail to respond with one of the above options within 30 days of receipt of this letter I will decide the case based upon the evidence I already have and the preliminary penalty will become final, unless an extension has been previously approved.
Enclosure (4), U.S. Coast Guard Civil Penalty Preliminary Assessment Letter Response Options, explains in detail the options you have in responding to this letter. Please pay particular attention to the applicable address associated with the response option you choose. Failure to read and comply with the directions outlined in enclosure (4) may result in a final decision being made without your response being considered.
If you are paying now, please complete the enclosed “Payment Form” and mail it to the address printed on the form. Enclose your check, money order, or credit card authorization along with the form.
If after reading enclosure (4) you still have questions about how to respond to this letter, you can contact the
Administrative Support Staff by email at HQS-SMB-CGHO-RESPONSE@USCG.MIL. You can also find additional information on our website at www.uscg.mil/Resources/legal/CGHO.
Sincerely,
| J. FOGLE |
Commander, U.S. Coast Guard
Coast Guard Hearing Officer
Encl: (1) Charge sheet
- Payment Form
- Copy of civil penalty case file 5752773
- Your Alternatives in the Coast Guard Civil Penalty Process
PAYMENT FORM
| Case No: | 5752773 |
| Name: | TOTE SERVICES, INC |
| Address: | 10550 DEERWOOD PARK BLVD SUITE 602 |
| JACKSONVILLE, FL 32256 |
Amount Due: $39,200.00
You can now pay your civil penalty online at http://www.Pay.gov Follow the attached Pay Online form for instructions. This is the fastest method of payment
Should you choose to do so, you can complete the form below and mail your payment. (Payment may take some time to process)
Select Method of Payment:
_____ Payments of $10,000 or more may be made by wire transfer.
_____ Check (Make Checks Payable to: U.S. Coast Guard. Also Write Case No. on Memo of Check)
_____ Master Card or VISA (only)
If paying by credit card, please charge my:
Master Card
Visa
Expiration date: _________________ (mm/yy)
Card Number:
Signature:__________________________________________
If you are unable to pay the penalty in full, you may contact our collection office at (510) 437-3644 to discuss a payment plan. Please note office hours are on Pacific Standard Time, or Pacific Daylight Savings Time.
ENCLOSE THIS FORM WITH YOUR PAYMENT AND MAIL TO:
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Commandant (CG-094H) 2703 Martin Luther King Jr. Ave. SE Stop 7794
Coast Guard Hearing Office Washington, DC 20593-7794
Phone:202-795-6240
Fax:202-372-8422
Toll-free:866-801-6178
Email: HQS-SMB-CGHO-Response@uscg.mil
www.uscg.mil/Resources/legal/CGHO
TOTE SERVICES, INC
K & L GATES LLP Activity No. 5752773
ATTN: Party: TOTE SERVICES, INC
STATE STREET FINANCIAL CENTER Date of Violation: August 18, 2015
ONE LINCOLN STREET Subject: EL FARO
BOSTON, MA 02111-2950 Amount: $39,200.00
Date: September 24, 2019
Re: Hearing Letter (HROP)
Dear Mr:
This letter confirms the date and time for your hearing. Your hearing is scheduled for Friday, October 25, 2019 at 09:00 a.m. (EST). The location is U.S. Coast Guard Base NCR. The address is 2703 Martin Luther King Jr. Ave SE, Washington, DC 20593. Please see the attached document for directions.
Should you decide to drive; when arriving to the base, you will need to park in the 15min visitor parking to check in with security. The security at the desk will check you in and provide a parking pass. Our base is also available by Metro Bus services. You can plan your trip on www.wmata.com. I recommend arriving 30 min prior to your hearing start time to go thru the security gate.
To gain access to the base security requires a valid picture ID that provides date of birth, and Social Security Number. I have enclosed a pamphlet for Visiting U.S. Coast Guard Headquarters for your information. Please complete the enclosed form, be sure to list all individuals who will be attending the hearing. Please provide this information by close of business on Friday, October 11, 2019. Without this information, you will be denied access to the building, and will result in waiver of the hearing. An escort from the hearing office will meet you at the Visitor Center after you have checked in with security.
If you intend on referring to any documentation during the hearing, please scan your documents and Email them to HQS-SG-CGHO-Admin@uscg.mil or mail a copy to our office prior to the hearing. Our overnight mail is often delayed, so if using overnight mail allow an additional 3-4 days. This will enable the Hearing Officer to have access to any exhibits or other documentation you are referring to during the hearing.
Following the hearing, you will be provided 10 business days to submit any additional information and evidence to the Hearing Officer. A final determination in this case will be made shortly thereafter.
Should you decide to waive your right to a hearing and submit evidence in lieu of the hearing, please notify our office in writing before the day of the hearing. Failure to appear will result in waiver
Sincerely,
Administrative Support Staff
Commandant (CG-094H) 2703 Martin Luther King Jr. Ave
Coast Guard Hearing Office Washington, DC 20593-7794
Phone:202-795-6240
Fax:202-372-8422
Toll-free: 1-866-801-6178
Email: HQS-SMB-CGHOResponse@USCG.MIL
K&L GATES LLP
STATE STREET FINANCIAL CENTER Activity No. 5752773
ONE LINCOLN STREET Party: Tote Services, Inc
BOSTON, MA 02111-2950 Date of Violation: August 18, 2015
Subject: EL FARO
Amount: $39,200.00
Date: February 21, 2020
Re: Rebuttal for Comments (RBCP)
Dear Mr.
I received your response dated November 15, 2019 and have included it in the case file for consideration.
With your response you brought up issues that I felt should be addressed by the charging unit prior to making my final decision. Therefore on November 18, 2019, I forwarded a copy of your response to the charging unit for comment. On February 19, 2020, I received their response, which has been included in the case file as evidence. With this letter, I have provided a copy of my memorandums and the charging unit’s response for your review and consideration.
You now have 30 days during which time you may provide comment in response to the charging unit’s rebuttal comments, and/or to provide additional evidence relevant to my decision in your case. If I do not hear back from you by March 23, 2020, I will make my final determination without your additional input.
Sincerely,
| J. FOGLE |
Commander, U.S. Coast Guard
Coast Guard Hearing Officer
Enclosures: (1) CGHO memorandums dated November 18, 2019 and December 11, 2019
(2) CAPT M. R. Vlaun’s statement dated February 19, 2020
Throughout the investigation conducted by the Marine Board, the foreign nationals aboard the EL FARO and EL YUNQUE were commonly referred to as members of a “riding gang.” Although repeatedly referred to as members of a “riding gang,” the legal statutes defining a “riding gang” and the legal requirements for “riding gang” members were not applicable to the EL FARO and EL YUNQUE.
Title 46 U.S. Code (USC) 8106 “Riding Gangs” allows U.S. freight vessels conducting international voyages to employ foreign nationals for the purpose of conducting certain permitted work. The EL FARO and the EL YUNQUE operated on a dedicated domestic voyage, solely transiting between two U.S. ports. As such, Title 46 USC 8106 was not applicable to either of these vessels. TOTE Services, Inc. was required to adhere to applicable laws regarding the employment of U.S. citizens bearing merchant mariner credentials as outlined in Title 46 USC 8103 and Title 46 USC 8701.
Congress added the riding gang provisions to Title 46 in Section 312 of The Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241, 120 Stat. 516, 530. The intent of Congress in enacting the riding gang provisions was to level the competitive field for U.S. vessels on international voyages. The Conference Report to accompany H.R. 889 stated that: “The conferees intend to allow for the employment of certain individuals on freight vessels on international voyages for extended periods qualifying as “riding gang members” without placing these vessels at a competitive disadvantage against similar foreign flag vessels.” H.R. CONF. REP. 109-413 at 71
In 2017, the U.S. Coast Guard adopted Congress’ riding gang provision within the Marine Safety Manual, Volume III: Marine Industry Personnel, COMDTINST M16000.8B. The following provision expressing the view that “riding gangs” were only applicable to international voyages was added in the Marine Safety Manual, Volume III:
“Riding Gangs. (2017) Section 312 of the Coast Guard and Maritime Transportation Act of 2006, Pub. L. 109-241, 120 Stat. 516, added Section 8106 and amended 2101(26a) as well as 8103(j) and 10301(b) of Title 46, U.S. Code. These sections should be referenced interdependently as they are intended to commonly apply only to U.S. freight vessels on international voyages (H.R. CONF. REP. 109-413, at 70 (2006), as reprinted in 2006 U.S.C.C.A.N. 579, 592).” MSM III page B1-19.
While the above provision was not incorporated into the U.S. Coast Guard’s Marine Safety Manual, Volume III until after the loss of the EL FARO, it would be inappropriate to adopt a contrary position and apply Title 46 USC 8601 to a domestic voyage.
I will now make my final decision.
The case file includes the following facts, which by a preponderance of the evidence I find proved:
- TOTE Services, Inc. is the operator of EL FARO (O.N. 561732) and EL YUNQUE (O.N. 573223), as charged.
- The EL FARO and EL YUNQUE were enrolled in the U.S. Coast Guard’s Alternate Compliance Program (ACP) as described in Title 46 Code of Federal Regulations (CFR) Part 8, and further outlined in Navigation and Vessel Inspection Circular (NVIC) 02-95. The purpose of the ACP, as defined in NVIC 02-95, is to enhance the competitive position of the U.S. fleet and reduce the regulatory burden of compliance by allowing certification societies to perform surveys on vessels enrolled in the program.
- The EL FARO and EL YUNQUE were required to report and receive approval for all routine maintenance and repairs from their Classification Society, and to report and receive approval for all damage repairs affecting fitness to proceed to the U.S. Coast Guard to remain in compliance with the ACP, a condition of each vessel’s Certificate of Inspection (COI).
- The ACP standard consists of applicable International Maritime Organization (IMO) instruments, Recognized Organization rules, and an approved U.S. Supplement as specified in 46 CFR 8.430. ACP vessels are required to follow regulations in 46 CFR 8.440, specifically, “applicable international treaties and agreements, the classification society’s class rules, and the U.S. Supplement prepared by the classification society and accepted by the U.S. Coast Guard.”
- As a condition of enrollment, ACP vessels must maintain compliance with the ACP Standard at all times, regardless of whether or not the vessel actually engages on an international voyage.
- During the period of August 18, 2015 to October 01, 2015, TOTE Services, Inc. employed seven unlicensed foreign nationals aboard the EL FARO to conduct conversion work. Title 46 USC 8701 requires that persons employed aboard a vessel over 100 gross tons must be a holder of a merchant mariner document issued by the U.S. Additionally, Title 46 USC 8103 requires that each unlicensed seamen aboard a documented U.S. vessel must be a citizen of the U.S., an alien lawfully admitted to the U.S. for permanent residence, or a foreign national enrolled in the U.S. Merchant Marine Academy.
- TOTE Services, Inc. failed to abide by the citizenship requirements and the credentialing requirements illustrated in U.S. Code when they employed seven foreign nationals as unlicensed seamen aboard the EL FARO.
- During the period of August 18, 2015 to September 28, 2015, TOTE Services, Inc. employed an individual aboard the EL FARO to conduct conversion work. While assigned aboard the vessel, the individual did not receive sufficient familiarization training or instructions to be able to identify muster or embarkation stations, identify his lifeboat station, or the location of various lifesaving equipment. Additionally, during this period of time, he was not provided instruction as to the location or use of his personal flotation device and was never required to don that equipment.
- TOTE Services, Inc. failed to provide this basic familiarization once the individual was assigned to the EL FARO, which is a violation of 46 CFR 15.1105. The U.S. Coast Guard charges one count for violation of 46 CFR 15.1105.
- During the period of August 18, 2015 through October 01, 2015, TOTE Services, Inc. was the operator of the EL FARO (O.N. 561732), a vessel subject to inspection under Chapter 33 of Title 46 of U.S. Code.
- During the period of August 18, 2015 through September 29, 2015, TOTE Services, Inc.
employed Mr. aboard the EL FARO, conducting conversion work.
- During the period of August 18, 2015 through September 28, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO, conducting conversion work.
- During the period of August 25, 2015 through October 01, 2015, TOTE Services, Inc.
employed Mr. aboard the EL FARO, conducting conversion work.
- During the period of September 01, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO, conducting conversion work.
- During the period of September 18, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO, conducting conversion work.
- During the period of September 25, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO, conducting conversion work.
- During the period of August 18, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO, conducting conversion work.
- Title 46 USC 8103(b)(1)(A) requires that each unlicensed seaman onboard a documented vessel must be a citizen of the U.S., an alien lawfully admitted to the U.S. for permanent residence, or a foreign national enrolled in the U.S. Merchant Marine Academy.
- During the period of August 18, 2015 through October 01, 2015 the unlicensed seamen employed aboard the EL FARO were not citizens of the U.S., aliens lawfully admitted to the U.S. for permanent residence, or foreign nationals enrolled in the U.S. Merchant Marine Academy.
- During the period of August 18, 2015 through October 01, 2015, TOTE Services, Inc. failed to abide by the citizenship requirements laid out in Title 46 USC 8103 (b)(1)(A) by employing Polish Foreign nationals, in the capacity of unlicensed seamen. TOTE Services, Inc. employed seven Polish nationals aboard the EL FARO to conduct conversion work.
- During the period of August 18, 2015 through October 01, 2015, TOTE Services, Inc. was the operator of the EL FARO, a vessel subject to inspection under Chapter 33 of Title 46 of U.S. Code.
- During the period of August 18, 2015 through September 29, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- During the period of August 18, 2015 through September 28, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- During the period of August 25, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- During the period of September 01, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- During the period of September 18, 2015 through October 01, 2015, TOTE Services, Inc.
employed Mr. aboard the EL FARO to conduct conversion work.
- During the period of September 25, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- During the period of August 18, 2015 through October 01, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- Title 46 USC 8701(b) requires an individual engaged or employed aboard a merchant vessel of at least 100 gross tons, to hold a merchant mariner document issued by the U.S.
- During the period of August 18, 2015 through October 01, 2015, the seven foreign individuals employed aboard the EL FARO were not holders of a merchant mariner document issued by the U.S.
- During the period of September 28, 2015 through October 01, 2015, TOTE Services, Inc. failed to abide by the mariner documentation requirements established Title 46 USC 8701(b) by employing the Polish nationals, who were not holders of a merchant mariner document issued by the U.S., aboard the EL FARO.
- During the period of August 18, 2015 through September 28, 2015, TOTE Services, Inc. was the operator of the EL FARO (O.N. 561732), a vessel subject to inspection under Chapter 33 of Title 46 of U.S. Code.
- During the period of August 18, 2015 through September 28, 2015, TOTE Services, Inc. employed Mr.
aboard the EL FARO to conduct conversion work.
- During the period of August 18, 2015 through September 28, 2015, while employed aboard the EL FARO, Mr.
did not receive sufficient familiarization training or instruction to be able to identify muster stations, lifeboat locations, or use of lifesaving equipment.
- TOTE Services, Inc.’s failure to provide sufficient familiarization training or instruction to persons assigned aboard a seagoing vessel is a violation of 46 CFR 15.1105 and further defined by Title 46 USC 3318(a).
In your July 05, 2019 response, you provided your issues in dispute to be discussed at a hearing.
Regarding overall mitigation of the proposed penalties in this matter you wrote in your October 22, 2019 response, “[TOTE Services, Inc. has] identified well in excess of 60 safety initiatives that [you] have implemented to address the many lessons learned in the investigations, the majority of which [you] began implementing well before the investigations concluded in 2017. You continued, “[You] have engaged in an active dialogue with the NTSB regarding the 10 Safety Recommendations they issued to [TOTE Services, Inc.]. [You] are proud to report [TOTE Services, Inc. has] implemented the 10 Safety Recommendations issued to [them]. The more than 60 initiatives [TOTE Services, Inc. has] implemented go well beyond the NTSB’s Safety Recommendations, but the investigative findings of both the NTSB and the Coast Guard have been a crucial part of [your] work for which [you] are grateful.”
Please note that I find your aforementioned actions credible and will take into consideration TOTE Services, Inc.’s lessons learned and safety initiatives undertaken since the loss of the EL FARO when determining an appropriate final penalty for each alleged violation.
Additionally, regarding the specific allegations you wrote, “[you] offer evidence in extenuation and mitigation for two alleged violations, and object to the factual and legal sufficiency of the remaining violations.”
Charges 1 and 2 – Failure to comply with the citizenship requirements for vessel personnel on documented vessels.
In your responses you did not dispute charges 1 and 2 but offered evidence in extenuation and mitigation for consideration of the final assessed penalty.
Regarding charges 1 and 2 you wrote, “While [you] acknowledge that the Polish riding crew were not U.S. citizens, and did not possess U.S. Merchant Mariner Credentials as required by 46 USC 8701 and 8103, respectively, the riding crew were employed on the assumption that they were not subject to these requirements because these individuals were considered what is colloquially referred to in the maritime industry as “a foreign riding gang.”
By a preponderance of the evidence in the case file, I find charges 1 and 2 PROVED.
In assessing an appropriate final penalty for charges 1 and 2, I have considered all the evidence, the circumstances, information provided at the hearing, and in your responses.
In mitigation, I have considered the following factor(s):
- You wrote, “For quite some time after the EL FARO incident, due to the lack of clarity on the Coast Guard’s implementation of [the riding gang statute 46 USC 8106], [TOTE Services, Inc.] decided to effectively refrain from using foreign riding gangs altogether on vessels we manage.”
- You wrote, “… [you] believe the unintentional nature of the violations, and the other extenuating and mitigating circumstances [discussed in your October 22, 2019 and March 27, 2020 responses, respectively], warrant a reasonable reduction in the penalty amounts.” Upon review, I will take those factors into consideration of the final penalty amount.
Based on the above, considering that TOTE Services, Inc. has no history of similar violations, and given the seriousness of the violations, I find that a reduction of the preliminary assessed penalty from $5,600 to $2,300 for Charge 1 and from $5,600 to $2,300 for Charge 2 is appropriate to prevent this from occurring again in the future.
Charges 3 and 4 – Failure to maintain vessel in compliance with the conditions of its Certificate of Inspection.
In your October 22, 2019 response you wrote, “Because the civil penalties… in connection with reporting maintenance and repairs are assessed on the basis of a violation of a NVIC, which does not have the force of law and regulation, we respectfully request that [the] penalties be dismissed.”
While I have reviewed your arguments in sum, I will now highlight your primary points as you wrote, and I quote:
- Sector Jacksonville failed to cite any law or regulation that specifically requires the reporting of the maintenance of repair items. Instead, the Enforcement Summary fashions the ‘failure to report’ as a violation of a ‘condition of its Certificate of Inspection,’ citing 46 USC 3313(a) as the statutory basis for the alleged violation.
- None of the ‘conditions’ mentioned in this regulatory description have anything to do with reporting. Instead, these ‘conditions’ are conditions of operation that the Coast Guard, Officer in Charge, Marine Inspection, determines, such as minimum manning, route, schedule of safety equipment on board, and similar operating conditions.
- The Enforcement Summary also cites the regulations in 46 CFR 8.410 and 46 CFR 8.440.
- But none of the laws or regulations set forth above specify any reporting requirements, yet the Investigating Officer (IO) relies upon these laws and regulations to impose civil penalties for a failure to report the maintenance and repair items… A close reading of the Enforcement Summary reveals the only reference cited by Sector Jacksonville that purports to impose a reporting requirement for these maintenance and repairs is enclosure (5) to NVIC 2-95, Change
2.
- It is axiomatic that the imposition of a civil penalty must be based on a violation of a law or regulation.
- The IO has not cited such a law – or properly promulgated regulation – that required the repair and maintenance items described above to be reported. Sector Jacksonville cites laws and regulations that do not mention reporting at all, and relies on NVIC 2-95, Change 2 as the sole basis for the alleged ‘requirement’ to report. The Coast Guard has itself acknowledged that the NVICs are ‘non-directive,’ meaning that they do not have the force of law.
- Finally, NVIC 02-95, Change 2, even by its own terms, is not intended to be legally binding on vessel owners. It states in the opening paragraphs that vessel owners and operators ‘are encouraged’ to take advantage of the procedures and guidelines detailed in this Circular.
In their February 19, 2020 rebuttal the Coast Guard wrote, “Within Subchapter I, 46 CFR 91.155 allows vessels to achieve an equivalent level of safety and compliance by voluntarily enrolling in the ACP under 46 CFR [Part 8].” They added, “By design, through the application of classification society rules, international standards, and the U.S. [ACP] Supplement, the notification process and requirements within the ACP ensures an equivalent level of safety to the notification requirements contained within 46 CFR Subchapter I.” They continued and wrote, “[This civil penalty case] included and referred to NVIC 02-95, Change 2 because it was the guidance in place at the time of the alleged violations and provided an easy to reference decision management matrix. This decision [management] matrix summarized who should be notified for various situations involving routine maintenance and repairs and damage repairs of varying severity. While not a legally binding document, NVIC 02-95, Change 2 was available for the Coast Guard, classification society, and owners in order to clarify the requirements of the ACP. NVIC 02-95, Change 2 did not create any new regulatory requirements, it merely compiled all the various notification requirements contained within international conventions, classification society rules, and the [ACP] U.S. Supplement and clarified the requirements to those participating in the program.”
The Coast Guard also wrote, “The International Convention for the Safety of Life at Sea, 1974 (74 SOLAS), Chapter I, Regulation I/11 of the 2014 Consolidation Edition of 74 SOLAS, which was applicable to the EL FARO and EL YUNQUE at the time of the alleged offenses, contains the broad language requiring the maintenance of conditions aboard a vessel after survey. In particular it states in section (c): Whenever an accident occurs to a ship or a defect is discovered, either of which affects the safety of the ship or the efficiency or completeness of its lifesaving appliances or other equipment, the master or owner of the ship shall report at the earliest possible opportunity to the Administration, the nominated surveyor or recognized organization responsible for issuing the relevant certificate, who shall cause investigations to be initiated to determine whether a survey, as required by regulations 7, 8, 9 or 10 is necessary.”
They continued, “Under the ACP, the EL FARO and EL YUNQUE were held to the requirements for notifications contained in ABS’ rules. The 2015 Edition of the Rules for Conditions for Classification, Part 1, Chapter 1, Section 8, Paragraph 1.1 states the following: Damage, failure, deterioration, or repair to hull, machinery, or equipment, which affects or may affect classification, is to be submitted by the Owners or their representatives for examination by a Surveyor at first opportunity. All repairs found necessary by the Surveyor are to be carried out to the Surveyor’s satisfaction.”
In your March 27, 2020 surrebuttal you wrote, “[You] have set forth in detail in [your] prior filings why [you] believe Sector Jacksonville has failed to identify a regulation or statute upon which it may impose penalties for failing to make reports of the maintenance and repair items at issue. [You] refer to [your] prior filings in this regard. In its rebuttal comments (and its Enforcement Summary), Sector Jacksonville seeks penalties under 46 USC 3313. This statute sets forth the general requirement that a vessel be in compliance with the conditions on its Certificate of Inspection, and provides a procedural framework for the Coast Guard to attain compliance, or potentially revoke the vessel’s COI when the vessel is out of compliance with its certificate or applicable law. Sector Jacksonville is attempting to extend or extrapolate the terms of this statute, to serve as a legal basis for the alleged ‘reporting requirements’ in Enclosure (5) to NVIC 02-95, ACP Decision Management Matrix. But there is simply no mention of reporting requirements in the statute, nor is this statute cited anywhere in NVIC 02-95.”
You continued, “Under Sector Jacksonville’s reasoning, a violation of any Coast Guard ACP policy or procedure – however inconsequential and regardless of how and who publishes that ‘policy’ – is instantly rendered enforceable as a violation 46 USC 3313 by virtue of enrollment in the ACP. In other words, under Sector Jacksonville’s theory, rather than publishing regulations through notice and comment that establish reporting requirements (or any other requirements), the Coast Guard can publish informal policy (i.e., a NVIC) to achieve the same objective, and call it a ‘condition’ of the Certificate of Inspection. That is essentially legal bootstrapping, and amounts to an end run around the procedural requirements necessary for enforcing legislative rules (i.e., the Code of Federal Regulations).”
In citing the D.C. Circuit Court of Appeals you wrote, the Congressional Research Service has stated the proper legal analysis of this issue: ‘[a]n agency action that purports to impose legally binding obligations or prohibitions on regulated parties… is a legislative rule,’ while ‘[a]n agency action that merely explains how the agency will enforce a statute or regulation… is a general statement of policy.’ A legislative rule can serve as ‘the basis for an enforcement action for violation’ of its requirements, but a policy statement, which is not legally binding, may not.”
Lastly you wrote, “NVIC 02-95 is clearly not a legislative rule, as it was not promulgated as other regulations are in Title 46 of the Code of Federal Regulations. Thus, even if NVIC 02-95 purports to establish reporting requirements based on the authority 46 USC 3313, Sector Jacksonville cannot base its enforcement action on such policy statements, consistent with the D.C. Circuit’s decision in Nat’l Min. Ass’n v. McCarthy.” _______
While taking your arguments into consideration and the Coast Guard’s rebuttal regarding charges 3 and 4, I note that the ACP, as discussed in NVIC 02-95, Change 2, is a voluntary alternate process for a U.S. registered vessel to obtain a Coast Guard COI by complying with the standards of an authorized classification Society, International Conventions and a U.S. ACP Supplement. The ACP is an alternative to complying with vessel certification and inspection standards contained in Title 46, Code of Federal Regulations and administered through inspections conducted by U.S. Coast Guard personnel. The classification society authorization is intended to reduce the regulatory burden on the maritime industry while maintaining existing levels of safety and provide the maritime industry with flexibility in determining how to build and operate U.S. flag vessels.
The intent of NVIC 02-95, Change 2, which includes a decision management matrix, is to assist participants in complying with the requirements of the ACP in 46 CFR Subpart D. Enrollment in the ACP and subsequent issuance of the COI is based on a vessel complying with requirements and standards described in section 8.440 and discussed in NVIC 02-95, Change 2 where the Coast Guard concluded those requirements and standards provided a level of safety and environmental protection equivalent to corresponding federal regulations which govern the inspection of U.S. vessels. And, if a vessel does not comply, the Coast Guard may not issue the Certificate of Inspection. For vessels already enrolled in the ACP, the Coast Guard may issue a CG-835 for not conforming with the requirements of law or regulations. Vessels are inspected and certificated in accordance with the terms and conditions specified in the ACP.
As described in 46 CFR § 8.440(c) and (d) regarding a vessel’s enrollment in the ACP, and discussed in NVIC 02-95, Change 2, “based on reports from an authorized classification society that a vessel complies with applicable international treaties and agreements, the classification society’s class rules, and the U.S. supplement prepared by the classification society and accepted by the Coast Guard, the cognizant OCMI may issue a COI to the vessel, and “if reports from an authorized classification society indicate that a vessel does not comply with applicable international treaties and agreements, the classification society’s class rules, and the U.S. supplement prepared by the classification society and accepted by the Coast Guard, the cognizant OCMI may decline to issue a Certificate of Inspection.”
Upon review, I find that the issuance of a vessel’s COI, for vessels enrolled in the ACP, is predicated on compliance with the aforementioned standards / requirements and thereby are conditions for issuance and operating. That includes reporting requirements from applicable international treaties and agreements, the classification society’s class rules, and the U.S. supplement prepared by the classification society and accepted by the Coast Guard. Not meeting those terms and conditions is a failure to maintain a vessel in compliance with its Certificate of Inspection, and by extension, its operating conditions listed in the Certificate of Inspection. In other words, if an ACP enrolled vessel does not meet those standards / requirements, then the vessel is not operating in compliance with the terms and condition of its Certificate of Inspection. _______
In the case file, the Coast Guard alleged three violations of 46 USC 3313, but after careful review of the supplemental evidence provided by you, the Coast Guard recommends dismissing the second allegation.
Allegation 2 – From August 24 to September 28, 2015, TOTE Services, Inc. failed to notify the Coast Guard of repairs conducted to the main propulsion boiler superheating piping. These repairs affected the vessel’s fitness to proceed and posed a safety risk to the crew.
The Coast Guard wrote, “In light of the arguments and evidence provided by the charged party, my office agrees that the leak in the steam drain line and the subsequent repairs to this drain line did not necessitate reporting to either the classification society or the U.S. Coast Guard. As a result, the second [allegation] did not amount to a violation of 46 USC 3313.”
Based on the above, I find it appropriate to dismiss the second of the three alleged violations of 46 USC 3313.
Allegation 1 – On September 29, 2015, it is alleged that TOTE Services, Inc. failed to notify and receive approval from the Coast Guard of repairs conducted to the port and starboard lifeboat davits aboard the EL FARO, repairs affecting the vessel’s primary lifesaving equipment and the vessel’s fitness to proceed. Additionally, the classification society was required to be informed of these repairs which occurred to the primary lifesaving equipment.
Allegation 3 – On July 07, 2015, it is alleged that TOTE Services, Inc. failed to notify and receive approval from the Coast Guard for repairs conducted on the primary lifesaving equipment aboard the EL YUNQUE. These repairs affected the vessel’s fitness to proceed. Additionally, the classification society was required to be informed of these repairs which occurred to primary lifesaving equipment.
In your October 22, 2019 response you dispute allegations 1 and 3 and wrote, “… the Enforcement Summary… does not fully set forth the facts related to the maintenance performed on the lifeboat davit clutches. The Enforcement Summary briefly states that the maintenance performed constituted ‘damage repair affecting fitness to proceed.’ Beyond the service report, there is no meaningful detail discussed in the Enforcement Summary. However, a more detailed examination of the record reveals that work performed was routine maintenance that involved inkind replacement of parts by a certified servicing engineer. The following facts were not included in the Enforcement Summary.
The work performed on the EL FARO lifeboats included installation of new free wheel clutches on the winches for the lifeboats. See MBI Wagner at page 7. This was a follow up item that was identified at the annual service and inspection visit, performed by Harding on August 4, 2015. As a result of that inspection, Harding, as the authorized servicing firm, certified that the inspection and servicing was performed in accordance with SOLAS Chapter III, Regulation 20, and IMO Circular MSC/Circ/1206/Rev. 1, and made certain recommendations. The service report noted that the starboard lifeboat winch clutch was leaking oil and making noise, and recommended replacing the clutch when the necessary parts were available. See MBI Ex. 239, page 6. TOTE agreed with these recommendations of the certified servicing engineer.
Subsequently, on September 28 and 29, 2015, after the replacement parts were obtained, and as a follow-up to the previous visit, Harding attended the vessel and installed two new clutches in the starboard lifeboat winch and tested the equipment before the vessel’s departure, carrying out the recommendations from the annual service inspection. See MBI Ex. 79. The service engineer, through his report and testimony before the MBI, verified that repairs were properly made and that the lifeboat davit clutch and the lifeboat davits were fully operational when he departed the vessel. See MBI Wagner, [May 26, 2017], p. 46.
The servicing engineer who performed the work on the EL FARO’s lifeboat winch clutches had over 25 years of experience with Harding in servicing lifeboats and other lifesaving equipment. He testified that there was no discussion as to whether the work being performed was considered a ‘major overhaul’ in which case, he testified that it would be ‘required that [ABS and USCG] be there. This wasn’t considered a major overhaul or anything of that nature. So usually it’s just Harding and the customer at the point.’ See MBI Wagner, [May 26, 2017], p. 46. Neither, Harding’s servicing engineer nor our highly-experienced mariners or shoreside staff perceived there was even an informal requirement to affirmatively report such work to the Coast Guard or ABS.”
In your November 15, 2019 response you added, “The 2003 [ACP U.S.] Supplement describes two situations in regard to vessel owners making reports to the Coast Guard and/or ABS regarding damages and repairs. First, there is a section of the 2003 [ACP] U.S. Supplement under the headings ‘What happens if the vessel is damaged?’ and ‘Reportable Casualty’” You continued and wrote, “None of the maintenance and repair items identified in the Enforcement Summary fall into the… marine casualty categories set forth in the [ACP] U.S. Supplement, which may explain why the IO did not allege a failure to report a marine casualty under the [ACP] U.S. Supplement or 46 CFR Part 4. Second, on page 6 of the 2003 [ACP] U.S. Supplement, it discusses making reports to ABS in situations where the vessel is not ‘fit to proceed.’ Throughout the Enforcement Summary the IO uses the term ‘fitness to proceed,’ but never defines what is meant by the use of that term, and how the maintenance and repair items fall within this definition. The 2003 [ACP] U.S. Supplement notes that ‘ABS takes the lead in determining fitness to proceed and is obliged to share this with the local OCMI.’ See Exhibit I at page 6 (internal quotes in original). The [ACP] U.S. Supplement goes on to explain in more detail what is meant by ‘seaworthiness’ and ‘fitness to proceed’ in the context of reporting requirements. Specifically, the 2003 [ACP] U.S. Supplement states:
‘No sail items – This is a term normally used by the USCG when the condition of a vessel is suspect or has deteriorated or has sustained excessive damages. ABS has the same concerns. However, the ABS terminology differs. ABS defines no sail items in various sections of the ABS Process Instructions. ABS does not use the term Seaworthy. The term used in ABS is Fitness to Proceed. A vessel is not considered Fit to Proceed if it has suffered structural damage that affects the longitudinal strength of the vessel or its watertight integrity, it also applies if the vessel has lost propulsion, steering or electrical generation capacity, including redundant systems.’
It is clear that none of the repair and maintenance items referenced in the Enforcement Summary rise to this level described in the above definition for a marine casualty or a vessel being not considered as Fit to Proceed. Accordingly, even if the 2003 [ACP U.S.] Supplement contained legally enforceable reporting requirements with civil penalties attaching for non-compliance (it does not), TOTE’s actions conformed to the above damage, repair, and casualty reporting guidance contained in the 2003 [ACP] U.S. Supplement.” _______
Upon further review, while I agree that TOTE Services, Inc. did not comply with the reporting requirements in Chapter I, Regulation I/11 of the 2014 Consolidation Edition of 74 SOLAS and 2015 Edition of the Rules for Conditions for Classification, Part 1, Chapter 1, Section 8, Paragraph 1.1, which would represent a violation of 46 USC 3313(a), I do not find that the Coast Guard properly brought the charges. Although the Coast Guard introduced the aforementioned references later in this proceedings, I concur with your following points:
- A close reading of the Enforcement Summary reveals the only reference cited by Sector Jacksonville that purports to impose a reporting requirement for these maintenance and repairs is enclosure (5) to NVIC 02-95, Change 2.
- Sector Jacksonville identified enclosure (5) in NVIC 02-95, Change 2 (ACP Decision Management Matrix) as the legal basis for the requirement to report the repairs and maintenance items to ABS and/or the Coast Guard.
The Coast Guard wrote that “NVIC 02-95, Change 2 did not create any new regulatory requirements, it merely compiled all the various notification requirements contained within international conventions, classification society rules, and the [ACP] U.S. Supplement and clarified the requirements to those participating in the program,” and while I agree that is the NVIC’s intent, I do not find the Decision Management Matrix provided clear guidance (or clarified the requirements with respect to notification) in this case as the terminology and its meaning therein is not consistent with the terminology and its meaning in SOLAS and the ABS rules. For that reason, I do not find that “NVIC 02-95[, Change 2,] page 33, Enclosure (5)” is appropriate to cite as the only reference to impose reporting requirements for repairs in this particular case.
Based on the above, I find it appropriate to DISMISS charges 3 and 4.
Charge 5 – Familiarization and basic safety training.
In your October 22, 2019 response you wrote, “There are various aspects of [the] evidence, cited in the Enforcement Summary, that are problematic. The first is that the Polish worker who testified form Poland at the marine board of investigation (MBI) did so without a certified court interpreter, and the quality of the audio was poor; thus, the precise testimony and translation is in doubt.”
You added that, “The evidence [therein] directly contradicts the conclusion in the Enforcement Summary, and is not mentioned, analyzed, or rebutted. The testimony from these mariners (including a member of the U.S. Coast Guard) independently and consistently corroborates that riders (and others embarked on the vessel) were routinely given safety indoctrinations and participated in drills to the extent required by law and the Safety Management System (SMS).
These records were kept on board and reviewed as part of ISM internal audits, reviewed by ABS as part of Safety Equipment Surveys, and sent ashore on a quarterly basis. Records for the riding gangs on the EL FARO were lost with the vessel. While there is some evidence to suggest this Polish rider did not receive the orientation/training, it is equally possible that his testimony was incomplete or that he forgot specifics of training he received, and, importantly, there is substantial, consistent evidence that these procedures were followed as a matter of course. Therefore, based on the totality of the evidence, it is more likely than not these safety training and indoctrination procedures were followed for the Polish riding crew, including Mr. Based on the totality of the evidence, it is more likely than not these procedures were followed in regard to this rider who departed the vessel on September 29, 2015.”
In their February 19, 2020 rebuttal, the Coast Guard wrote, “As a point of clarification, the Coast Guard is alleging that one Polish ship riding crew member, Mr. who was interviewed by the marine board of investigation, was not given as adequate familiarization and basic training in accordance with 46 CFR 15.1105. [Their] office has not alleged, and the available record does not support, that any other riding crew members were not provided this training.”
They continued and wrote, “The ship riding gang member in question, Mr. directly answered questions during the marine board’s line of questioning stating that he had not been provided with the required training. Specifically, Mr. stated that he had never donned an immersion suit, that he never donned a life jacket, that he was never taken to the lifeboats or life raft, and that he was never shown what he was supposed to do in an emergency or told to which lifeboat he was assigned. [TOTE Services, Inc.] alleges that the document containing the proof of Mr. training was lost with the sinking of the EL FARO. Even if that is the case, Mr.
testimony made it clear that even if he had been provided familiarization training aboard
the EL FARO, any training given did not meet the requirements or intent of 46 CFR 15.1105.”
Lastly, they added, “Additionally, the amount of questions asked to Mr. about the safety systems and equipment of the vessel make it clear that the witness was being questioned about if he had knowledge of the vessel’s safety systems, which he repeatedly indicated he did not. It is reasonable to assume the Mr. was aware that he was being asked about safety procedures on the vessel. Over the course of the interview, Mr. clearly indicated he was not aware of the safety requirements. Furthermore, during the testimony, no parties present questioned the validity of the testimony, the reliability of the translation, or made a motion to stop the testimony until an additional translator could be obtained. These factors support the credibility and accuracy of Mr. testimony.”
In your March 27, 2020 surrebuttal you wrote, “[You] believe the testimony received at the hearing, given the significant language barrier that existed and lack of a qualified translator, provides inadequate evidentiary support for this violation.”
Upon review, I do not find your contrary evidence compelling and by a preponderance of the evidence in the case file, I find Charge 5 PROVED.
In assessing an appropriate final penalty for Charge 5, I have considered all the evidence, the circumstances, information provided at the hearing, and in your responses.
In mitigation, I have considered the following factor(s):
1) TOTE Services, Inc.’s lessons learned and safety initiatives undertaken since the loss of the EL FARO, as discussed in the opening of this decision.
Based on the above, considering that TOTE Services, Inc. has no history of a similar violation, and given the seriousness of the violation, I find that a reduction of the preliminary assessed penalty from $4,000 to $750 for Charge 5 is appropriate to prevent this from occurring again in the future.
This is my final determination.
If you do not pay this penalty within 30 days, you will incur additional costs mandated by the Debt Collection Act of 1982. First, interest will accrue from the date of this letter at an annual rate of 2%, but that interest charge will be waived if payment is received within 30 days. Second, if you do not pay within 30 days, you will also owe an administrative charge of $12.00 per month. Finally, if payment is not received within 90 days, you will owe a late payment penalty of 6% of the sum of the penalty, accrued interest, and administrative charges.
You may appeal my decision to the Commandant of the Coast Guard. You have 30 days from the date you receive this letter to do so. If you decide to appeal my decision, address your appeal to the Commandant of the Coast Guard but mail it to me. I will then send the appeal forward with the official case file.
Title 33, Code of Federal Regulations, Part 1.07-70 , expressly limits matters on appeal to those issues that were properly raised before the Hearing Officer and jurisdictional questions. That is, aside from jurisdictional questions, matters on appeal are limited to those issues raised before me prior to my final decision in this case. If you find you have newly discovered evidence to be considered following my final decision, you may petition me to reopen your case. The petition to reopen must be in writing and explain why the evidence was not presented for my consideration during the course of the adjudication of your case. I may reopen your case if I find that the evidence will have a direct and material bearing on the issues and there is a valid explanation as to why the evidence was not and could not have been produced during the adjudication of your case. My decision regarding the petition to reopen will be rendered in writing.
If you do not appeal my final decision within 30 days from receipt of this letter, my decision becomes the Coast Guard’s final action on this case.
Sincerely,
| J. FOGLE |
Commander, U.S. Coast Guard
Coast Guard Hearing Officer
Encl: (1) Charge sheet
(2) Payment form