MANNING OF UNINSPECTED TOWING VESSELS  (Spring 88)

 At issue after a casualty is whether or not the vessel was seaworthy. This may be because of a limitation action. Certainly manning is within the knowledge and purview of the owner and improper or inadequate manning would probably defeat any limitation action.

A claimant may seek to invoke the Pennsylvania rule if he can show a statutory violation with respect to manning.

Improper manning may also result in action against the operator/master's license and a monetary penalty against the owner or agent. Some owners feel that the monetary saving of having fewer crewmembers than are required by law will be greater than the cost of a violation penalty if they are caught. Thus they sail their boats short. What they fail to consider is the cost if someone is injured or killed, or if the vessel is involved in a collision.

A number of recent cases have dealt with manning violations. Research into the confusing issue of proper manning has brought to light several interesting problems. Foremost is the three watch versus the two watch system for officers and for the crew other than officers. Secondarily, what licenses are required.

Further, the recodification of many of the statutes in Chapter 46, U. S. Code, has resulted in a change in the law, perhaps unintentionally. To add to that, on October 16, 1987, the Coast Guard published in the Federal Register interim final regulations on Licensing of Maritime Personnel, and on Manning. These regulations went into effect on December 1, 1987. Set forth below are the requirements which are better expressed in the new regulations, but which have not changed substantively since the recodification of the U. S. Code. The reader is cautioned that this article is not an exhaustive review of the regulations and thus should review the regulations for amplification.

Licenses required. In order to understand the licensing system for uninspected towing vessels, one must start with the Officer Competency Certificate Convention, 1936. Under this convention, documented vessels 200 gross tons and over (see 46 CFR 69 for definition of gross ton) operating seaward of the Boundary Lines (defined in 46 CFR 7), must hold a license authorizing them to sail in that capacity.

The Coast Guard issues two different groups of licenses that are applicable to towing vessels. One group is the master/mate licenses; the other is the operator/second class operator license issued under 46 CFR 10.464.

The master/mate/engineer categories fulfill the requirements of the Officer Competency Certificate Act. The operator's license does not (see 46 CFR 10.464 (a)). Therefore, at the outset, if a vessel is 200 gross tons or more, and is operated outside the Boundary Line, the vessel must be manned with deck officers holding master/mate licenses. And, under the Officer Competency Act, the master must be the holder of the master's license.

Additionally, article 2 of the Act defines "Chief engineer" as "any person who is permanently responsible for the mechanical propulsion of the vessel" and "engineer officer of the watch" as "any person who is for the time being actually in charge of the running of a vessel's engines." Thus, on tugs over 200 gross tons that proceed to sea outside the boundary line, a person performing duties as defined above must be the holder of an appropriate license, and not merely a merchant mariner's document.

If the towing vessel is at least 26 feet in length and under 200 gross tons and not operated on a foreign voyage, licensed deck officers need only be the holder of a license endorsed "operator of uninspected towing vessels". Of course, "an individual of 21 years or more of age holding a license as master, or a license as mate on vessels over 200 gross tons, is authorized to serve as operator of uninspected towing vessels within any restrictions on the individual's license. A mate may, however, only serve as operator on domestic routes" (46 CFR 15.910). No license is required on towing vessels under 26 feet in length.

Interestingly enough, an operator's license is suitable for towing vessels over 200 gross tons on inland waters. The license does not have a tonnage limitation placed on it as do the master/mate licenses.

Seaman's document requirements.

On towing vessels 100 gross tons and above not operating exclusively on rivers (high seas, bays and sounds), all crew members must be in possession of a merchant seaman's card (46 CFR 12.02-7).

At least 65% of the deck crew must be Able Seamen, EXCEPT vessels authorized to maintain a two watch system may have only 50% Able Seaman (46 CFR 15.840). Deck crew is defined as members of the deck department below the grade of licensed individual: Able seamen and ordinary seamen (46 CFR 15.301).

Unlicensed Watches.

"The Coast Guard interprets the term 'watch' to be the direct performance of vessel operations, whether deck or engine, where such operations would routinely be controlled and performed in a scheduled and fixed rotation" (46 CFR 15.705).

For uninspected towing vessels there is no statutory requirement for an unlicensed deck force. However, if unlicensed personnel are carried in the deck force in the capacity of ordinary seaman or able seaman, and if they stand watches, there must be the required number to meet the watch requirements when the vessel is at sea (operated to seaward the Boundary line). Thus, where a vessel is required to carry three watches on a prolonged voyage to assure no person stand more than eight hours of watch, when operating on a short voyage of less than 8 hours, it need carry only one watch.

Even though there is no specific requirement for a watch of unlicensed deck personnel, there are requirements in Rule 5 of both the inland and international rules of the road for the maintenance of a lookout. The general rule is that a proper lookout may have no other duties that would interfere with his responsibility as lookout, and thus cannot be the person who is in charge of the navigation of the vessel. Some courts have limited the general rule for smaller vessels. "Lookout is a function to be performed by a member of the navigational watch" (46 CFR 15.850). Thus an argument can be made that seagoing tugs must have a watch of lookouts which would then fall under the terms and requirements of the manning regulations.

Unlicensed deck personnel which stand a watch must be divided into three watches if the towing vessel is over 100 gross tons and operates outside the boundary line (46 USC 8104(d)), EXCEPT, towing vessels may divide their deck watchs into two sections if the voyage, any part of which passes outside the boundary line is less than 600 miles (46 USC 8104(g)).

With one exception not here applicable, the sheltered waters along the west coast of Canada have been considered as not inland waters. At the request of MEC, this administrative determination is being reviewed.

The courts have ruled that the length of the voyage shall be measured from the port of departure to the last port of call. Where a vessel calls at a port or ports before her final port, the length of the voyage for the purpose of manning requirements is not shortened.

Where a portion of the voyage is outside the boundary line, an earlier interpretation was that the manning for the entire voyage must meet the standard for the seaward portion of the voyage. Thus, a vessel which traveled a portion of its route outside the boundary line, such voyage being over 600 miles in its entirety (but which may be less than 600 miles on the high seas), and which has a deck or engineroom watch had to have a three watch system over the entire voyage. However, recent discussions with Coast Guard personnel and an Administrative Law Judge's opinion have resulted in requiring the three-watch system only during the portion of the voyage when the vessel is outside the boundary lines.

It should also be noted that on the Great Lakes and certain tributaries, unlicensed (and licensed) personnel shall not be permitted to work more than eight hours a day.

Licensed Watches - The type of licenses required for deck officers has been discussed.

Subject to exceptions, 46 USC 8104(d) requires licensed individuals to be placed on a three watch system when at sea on vessels of more than 100 gross tons. However, towing vessel licensed personnel may be divided into two watches when at sea and engaged in a voyage of less than 600 miles 46 USC 8104(g)).

Additionally, 46 USC 8104(h) permits licensed personnel on towing vessels of at least 26 feet in length to work not more than 12 hours in any 24 hour period. There is no reference to the waters on which this is applicable and thus it is taken to apply to any waters including the high seas.

The apparent conflict between sections 8104(g) and 8104(h) has been interpreted by the Coast Guard to permit licensed individuals (holders of master/mate licenses or operators licenses) who serve as operators of uninspected towing vessels which are NOT SUBJECT TO the Officer Competency Act to be divided into two watch system regardless of the length of the voyage. These would be vessels under 200 gross tons that proceed beyond the Boundary Line as well as all inland towing vessels regardless of tonnage.

Captain Greiner, president of Maritime & Environmental Consultants, an attorney, served in Coast Guard headquarters as the Executive Secretary of the Marine Safety Counsel, the body which handles the day to day control of the Coast Guard regulatory proposals. He maintains files on background material and court decisions on manning requirements and has testified as an expert regarding them.

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