Maritime Attorneys Offer Best Practices For Operators Before, After An Incident

It’s a well-established fact that the inland towboat and barge industry today is the most efficient and environmentally responsible way to transport bulk cargoes, from agriculture products to energy products and raw materials.

But moving those cargos isn’t easy, and despite the industry’s focus on safe operations, there’s always an inherent risk. The Waterways Journal spoke with some maritime attorneys to identify some basic ways operators can manage that risk in normal operations and some actions to consider should an incident occur. While the attorneys focused on different aspects of a company’s operations, relationships and communications were two common themes.

For companies operating under a Towing Safety Management System (TSMS), Phil Schifflin, director of the Seamen’s Church Institute’s Center for Mariner Advocacy and a 30-year veteran of the U.S. Coast Guard, said the best thing a company can do is to keep its TSMS at a usable size and provide a way for it to be honed and improved through feedback.

Reflecting back on his time with the Coast Guard, Schifflin recalled the “voluminous” Safety Management Systems he would see in the blue-water industry. They were so big that “you knew the mariners didn’t read them,” Schifflin said.

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“Some TSMS systems are beginning to look like that,” he said.

Ideally, a TSMS reflects the day-to-day procedures mariners are already following and serves as a reference point for tasks and situations. Still, crews don’t operate in a vacuum. The nation’s rivers and canals are dynamic, and so too are the crews building tows and transporting barges on them. As such, companies ought to provide a “feedback loop” so that mariners who identify a “better, safer or as-safe and more efficient” way of accomplishing a task can communicate that and, if appropriate, have it incorporated into the TSMS, Schifflin said.

Those small steps toward improving safe operations, Schifflin said, could help a company avoid having an accident in the first place.

After An Incident

Adam Davis, a solo practitioner who also spent time as a mariner aboard towboats earlier in his career, focused on some practical steps he counsels clients to take when an incident occurs.

“I think the No. 1 thing is the preservation of evidence,” Davis said.

In the heat of the moment, Davis said, vessel personnel, port captains or other operations personnel might inadvertently discard, for example, a parted wire simply because it doesn’t appear to be relevant. In another case, they might download some critical vessel electronic data but not all of it, maybe due to a lack of familiarity with the software in use.

To ensure the proper preservation of evidence, Davis always advises that companies bring in a third-party surveyor for physical evidence and a third-party technology expert for gathering electronic data.

Secondly, Davis said being thoughtful about giving statements after an incident is important. As a general rule, he suggests giving crew members some time to rest and reflect before giving their statements.

“Most of the time, the Coast Guard respects that request, but many times companies don’t think to make that request,” he said. “You’re not going to lose any points asking for a day or two to let your guys collect their thoughts and review some of the evidence before giving a formal interview.”

Davis said it’s also crucial for a company to “put other parties on notice” with regard to gathering evidence and to declare itself a “party in interest” in the Coast Guard’s investigation.

Company leaders, Davis said, may find it helpful to conduct “tabletop” exercises for each type of potential incident with their maritime attorney and operations managers. That way, if an incident occurs, the response is simplified.

“It shouldn’t be complicated,” Davis said. “One, go into response mode. Two, call your attorney.”

Building on that, Jim Kearns, special counsel for Jones Walker, said a call to an insurance underwriter is important early in the process “in order to protect the ability either to file a claim or to defend against a claim.”

“Underwriters can also assist with certain aspects of an incident response, such as retaining surveyors or coordinating spill responses,” Kearns said.

Kearns added that, especially in case of damage to a vessel, the vessel owner should check financing documents “to see what they require for timely notice of an incident to be given to lenders or lessors.”

Finally, Davis said a good bonus companies can offer to captains and pilots is “license defense insurance,” which, in the case of an incident where a wheelman might be under investigation, would provide a defense attorney for that crew member.

“My experience is that builds some rapport between the captains and the company,” Davis said.

That defense attorney isn’t an adversary of the company, Davis said, just a counsel for the captain.

“A five-minute call with an attorney can really help the captain,” Davis said. “It gives your captain peace of mind.”

Marc Hebert, a partner in Jones Walker’s Corporate Practice Group, advocated for a bigger-picture approach to risk management that goes beyond—yet still encompasses—company protocols and incident response.

“A holistic approach is what’s needed,” Hebert said. “And that will require involvement from a whole list of actors within the company. It’s the entire team coming together.”

Communications and relationships throughout the entire organization are important. So too is being a part of the larger maritime and regulatory community, Hebert said. Along the Gulf Coast, that includes membership and participation in organizations like the Greater New Orleans Barge Fleeting Association and the Gulf Intracoastal Canal Association. Getting involved with local harbor safety committees and finding ways to engage with local Coast Guard groups and Customs and Border Protection are crucial, too.

Doing so isn’t going to change the outcome of an incident investigation or the facts of a compliance issue, Hebert said. But those relationships can be quite valuable in the heat of an incident response, he said, and they might also lower tensions in the case of a non-compliance situation.

“And it just makes for a more healthy environment in the marine transportation system,” Hebert said.