Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications [1 ed.] 9781617283420, 9781616683078

Citation preview

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

LAWS AND LEGISLATION

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

MARITIME LAW: ISSUES, CHALLENGES AND IMPLICATIONS

No part of this digital document may be reproduced, stored in a retrieval system or transmitted in any form or by any means. The publisher has taken reasonable care in the preparation of this digital document, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained herein. This digital document is sold with the clear understanding that the publisher is not engaged in rendering legal, medical or any other professional services.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

LAWS AND LEGISLATION Additional books in this series can be found on Nova‘s website under the Series tab.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Additional E-books in this series can be found on Nova‘s website under the E-book tab.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

LAWS AND LEGISLATION

MARITIME LAW: ISSUES, CHALLENGES AND IMPLICATIONS

JACK W. HARRIS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

EDITOR

Nova Science Publishers, Inc. New York

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2011 by Nova Science Publishers, Inc. All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means: electronic, electrostatic, magnetic, tape, mechanical photocopying, recording or otherwise without the written permission of the Publisher. For permission to use material from this book please contact us: Telephone 631-231-7269; Fax 631-231-8175 Web Site: http://www.novapublishers.com

NOTICE TO THE READER The Publisher has taken reasonable care in the preparation of this book, but makes no expressed or implied warranty of any kind and assumes no responsibility for any errors or omissions. No liability is assumed for incidental or consequential damages in connection with or arising out of information contained in this book. The Publisher shall not be liable for any special, consequential, or exemplary damages resulting, in whole or in part, from the readers‘ use of, or reliance upon, this material. Any parts of this book based on government reports are so indicated and copyright is claimed for those parts to the extent applicable to compilations of such works.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Independent verification should be sought for any data, advice or recommendations contained in this book. In addition, no responsibility is assumed by the publisher for any injury and/or damage to persons or property arising from any methods, products, instructions, ideas or otherwise contained in this publication. This publication is designed to provide accurate and authoritative information with regard to the subject matter covered herein. It is sold with the clear understanding that the Publisher is not engaged in rendering legal or any other professional services. If legal or any other expert assistance is required, the services of a competent person should be sought. FROM A DECLARATION OF PARTICIPANTS JOINTLY ADOPTED BY A COMMITTEE OF THE AMERICAN BAR ASSOCIATION AND A COMMITTEE OF PUBLISHERS. Additional color graphics may be available in the e-book version of this book. LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA Maritime law : issues, challenges and implications / Jack W. Harris (editor). p. cm. Includes index.

ISBN:  (eBook)

1. Maritime law. 2. Law of the sea. 3. Marine pollution--Law and legislation. 4. Maritime law--United States. 5. Law of the sea--United States. 6. Marine pollution--Law and legislation--United States. I. Harris, Jack W. K1150.M367 2009 343.09'6--dc22 2010015612

Published by Nova Science Publishers, Inc. † New York Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

CONTENTS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Preface

vii

Chapter 1

International Approaches to Underwater Cultural Heritage Mark Staniforth, James Hunter and Emily Jateff

Chapter 2

Things, Inc.: A Case for In Situ Application Jerome Lynn Hall

27

Chapter 3

Innovative Tools for Preventing Marine Pollution from Ships Griselda Capaldo

53

Chapter 4

Coast Guard: Administrative Law Judge Program Contains Elements Designed to Foster Judge's Independence and Mariner Protections Assessed are Being Followed United States Government Accountability Office

Chapter 5

Reauthorization of the Federal Maritime Commission (FMC): Opportunity to Reexamine the Congressionally Mandated Antitrust Exemption for Ocean Liner Carriers? John Frittelli

Chapter 6

Cruise Vessel Safety and Security Act of 2009 John D. Rockefeller

Chapter 7

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of the United States of America and the Government of Canada Preamble

Chapter 8

Ocean Dumping Act: A Summary of the Law Claudia Copeland

Chapter 9

America's Advocate for the Maritime Industry: Maritime Administration Policy Paper Maritime Administration

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

1

59

97 119

133 145

151

vi Chapter 10

Contents Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues Claudia Copeland

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Index

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

155 185

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

PREFACE Maritime law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, shipping, sailors, and the transportation of passengers and goods by sea. Maritime law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character. This book explores such topics as the United States Coast Guard Administrative Law Judge program which is designed to promote safety at sea while protecting mariner's rights; international approaches to Underwater Cultural Heritage protection; cruise vessel safety and security and others. Chapter 1 - This chapter considers international approaches to Underwater Cultural Heritage such as the United Nations Convention of the Law of the Sea (UNCLOS) the 1996 ICOMOS Charter for the Protection and Management of Underwater Cultural Heritage and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. The paper will also consider three case studies—the United States, Australia and Spain—to examine different national approaches to underwater cultural heritage law. The most common mechanism by which underwater archaeological sites throughout the world are protected is by using cultural heritage legislation (Bowens 2009: 45-52). In 1982 UNCLOS provided that ‗States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose‘ (Fletcher-Tomenius & Forrest 2000). National and state (or provincial) governments have the right to enact and enforce legislation and regulations for the protection and preservation of underwater cultural heritage lying in or under their internal waters and territorial seas sometimes have enacted legislation that includes the Exclusive Economic Zone (EEZ) as far out as the edge of the Continental Shelf. In more recent years, multilateral attempts to control activity on, and to create standards for, the conduct of archaeological research on underwater cultural heritage sites, such as shipwrecks, have led to the creation of firstly the ICOMOS Charter for the Protection and Management of Underwater Cultural Heritage secondly, and perhaps more significantly, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. Chapter 2 - In January 2009, the United Nations Educational Scientific and Cultural Organization‘s (UNESCO) Convention on the Protection of the Underwater Cultural Heritage entered into force with the ratification of its twentieth instrument. Resultantly, State

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

viii

Jack W. Harris

signatories to the document are now able to impose regulations prohibiting – among other things – commercial exploitation of cultural heritage for trade or speculation and the irretrievable dispersal of such items. The fundamental principle and underlying tenor of the Convention, as stated in its first Article, is that underwater cultural heritage (UCH) is best protected through in situ preservation. Many, however, including popular and pseudo-scientific media and their subscribers, fail to acknowledge this preservation strategy as a coherent managerial approach to the safeguarding, understanding, and enjoyment of UCH. Swayed by ―media-ready‖ public relations campaigns of for-profit ―salvage companies‖ (treasure hunters), they embrace a limited definition of archaeology centered almost exclusively in selective excavation techniques. Consequently – and because these endeavors are driven largely by ―product‖oriented business plans – in situ preservation has no place in the corporate profit prospectus. Though the precepts and procedures of archaeology are abundantly clear (design formulation, implementation, data collection, processing and conservation, analyses, interpretation, and publication), archaeologists must do more to illumine media cohorts and their public devotees that the discipline is defined by and ―bounded‖ in stipulated actions: inter alia, competence of researchers, professional treatment of material culture, and the ethical consideration of people(s) in whose territories cultural materials reside, belong, or originate. Only when the public appreciates archaeology as a process framed within prescribed ethical behaviors will they see treasure hunting for what it is: an industry of personal enrichment and conspicuous consumption at the expense of the public good. How we view ―things‖ is an overwhelmingly complex issue – deeply cultural and profoundly consequential. In situ preservation, UNESCO‘s preferred first option and most practical approach to UCH, is a notion recognizing that sometimes, the greatest impact we may have on the future of our collective cultural histories is to ensure that we have little-tono impact at all. Chapter 3 - This short commentary aims to provide a general background and view on the environmental impact caused by maritime transport on oceans, focusing our attention on the pollution caused by crude oil leaked into them. Based on worldwide trends and statistics, the report also provides a range of innovative ideas to improve the applicability of environmental conventions to sub-standard ships that menaces the marine preservation. Chapter 4 - The United States Coast Guard‘s Administrative Law Judge (ALJ) program is designed to, among other things, promote safety at sea while protecting mariners‘ rights and is composed of judges whose duties include presiding over cases involving mariners‘ credentials. If a mariner does not meet certain requirements related to safety and security at sea, Coast Guard investigative officers are to serve the mariner with a complaint that lists the allegation(s) and initiate proceedings that can result in the mariner‘s credential being suspended or revoked. GAO was asked to review elements of the ALJ program and this chapteraddresses (1) the extent to which the ALJ program contains elements designed to foster the decisional independence of ALJs, (2) the extent to which the ALJ program includes protections for mariners and whether complaints and decisions include elements required by program regulations, and (3) the outcome of mariner suspension and revocation cases in recent years.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Preface

ix

To conduct this study, GAO analyzed the laws, regulations, and policies governing the ALJ program. GAO also reviewed all suspension and revocation cases opened and closed from November 10, 2005, through September 30, 2008, to determine outcomes, and further reviewed a representative sample of these cases to determine whether complaints and decisions included the required elements. GAO supplemented these case reviews with interviews of Coast Guard ALJ program officials. Chapter 5 - Authorization for the Federal Maritime Commission (FMC), the regulatory agency with jurisdiction over ocean liner carriers, expires at the end of FY2008, pursuant to P.L. 108-293. Although the FMC does not itself grant the antitrust exemption that Congress has provided to certain ocean liners in a series of shipping acts, the agency‘s reauthorization might provide an opportunity for Congress to reconsider the current viability of that exemption, which dates back to the early 1900s. The European Union (EU), for example, recently decided to outlaw collective rate-setting among container carriers engaged in EU trade lanes. Shipping lines contend such arrangements are still necessary to stabilize rates and service in liner shipping. Shippers argue that this exemption is no longer necessary and allows container carriers to charge more than they would otherwise. U.S. exporters contend that this exemption is a contributing factor in their inability to obtain enough containers and vessel space to meet surging demand for their goods. After years of large U.S. trade imbalances in which imported containers outnumbered exported containers by more than two to one, the decline in the U.S. dollar and rising incomes abroad have led to a dramatic rise in demand for U.S. goods. While the United States is no longer a provider of ocean container services, it is a large user of them. The persistent U.S. merchandise trade deficit manifests itself in the container trade. Over three times more containers are imported from Asia than are exported to that region, while nearly two times more containers are imported from Europe than are exported to Europe. As a result of this imbalance, outbound shippingrates to Asia and Europe have been about half as much as inbound rates. While recent market changes have started a possible revival of the U.S. outbound trade that has long been non-remunerative, the import market still dominates shipowner decisions about where to deploy vessel space. The persistent merchandise trade deficit is thus a double-edged sword for U.S. exporters. Because of it, they ship at below cost, yet it also means that they are dependent on import market conditions for the supply of shipping space. Inasmuch as a desire for international comity is one factor that has shaped U.S. shipping policy, Congress could decide to follow the EU‘s lead and repeal antitrust immunity, or it could take a ―wait-and-see‖ approach to observe any positive or negative effects that the repeal may have on European trade. Repealing antitrust immunity may lead to lower freight rates but also greater price volatility and some amount of turmoil in the liner market. The historical development of U.S. shipping law has reflected a balance between maintaining a viable U.S.-owned liner fleet for national security purposes and consideration of the interests of U.S. importers and exporters for reliable shipping at competitive rates. Now that the U.S. liner fleet in foreign commerce has almost disappeared, policymakers may wish to reevaluate that balance. The focus of this chapter is on the commercial aspects of the U.S. liner trade. It does not provide a legal analysis of antitrust immunity as it applies to liner carriers. Chapter 6 - The Committee on Commerce, Science, and Transportation, to which was referred the bill (S. 588) to amend title 46, United States Code, to establish requirements to ensure the security and safety of passengers and crew on cruise vessels, and for other pur-

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

x

Jack W. Harris

poses, having considered the same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass. Chapter 7 features the preamble to a maritime agreement between the United States and Canada. Chapter 8 - The Marine Protection, Research, and Sanctuaries Act has two basic aims: to regulate intentional ocean disposal of materials, and to authorize related research. Permit and enforcement provisions of the law are often referred to as the Ocean Dumping Act. The basic provisions of the act have remained virtually unchanged since 1972, when it was enacted to establish a comprehensive waste management system toregulate disposal or dumping of all materials into marine waters that are within U.S. jurisdiction, although a number of new authorities have been added. This chapter presents a summary of the law. Chapter 9 - Cabotage laws date back to the earliest days of our history. In 1789, Congress imposed added duties on goods transported by foreign vessels. The Navigation Acts of 1817 barred foreign vessels from domestic commerce. In 1886, Congress extended cabotage laws to passenger vessels, and in 1905 Congress retained U.S. build requirements for domestic shipping. The Merchant Marine Act of 1920 was enacted with the aim of maintaining a merchant marine of the best equipped and most suitable types of vessels owned and crewed by U.S. citizens, sufficient to carry the greater portion of U.S. commerce and serve as a naval or military auxiliary at time of war. Section 27 of that Act is known as The Jones Act Together with the Passenger Vessel Services Act of 1886, it reserves marine transportation of freight and passengers to U.S.-built, maintained, documented, owned and crewed vessels. Similar laws cover dredging in U.S. waters and towing and salvage op-erations. Chapter 10 - The cruise industry is a significant and growing contributor to the U.S. economy, providing more than $32 billion in benefits annually and generating more than 330,000 U.S. jobs, but also making the environmental impacts of its activities an issue to many. Although cruise ships represent a small fraction of the entire shipping industry worldwide, public attention to their environmental impacts comes in part from the fact that cruise ships are highly visible and in part because of the industry‘s desire to promote a positive image. Cruise ships carrying several thousand passengers and crew have been compared to ―floating cities,‖ and the volume of wastes that they produce is comparably large, consisting of sewage; wastewater from sinks, showers, and galleys (graywater); hazardous wastes; solid waste; oilybilge water; ballast water; and air pollution. The waste streams generated by cruise ships are governed by a number of international protocols (especially MARPOL) and U.S. domestic laws (including the Clean Water Act and the Act to Prevent Pollution from Ships), regulations, and standards, but there is no single law or rule. Some cruise ship waste streams appear to be well regulated, such as solid wastes (garbage and plastics) and bilge water. But there is overlap of some areas, and there are gaps in others. Some, such as graywater and ballast water, are not regulated (except in the Great Lakes), and concern is increasing about the impacts of these discharges on public health and the environment. In other areas, regulations apply, but critics argue that they are not stringent enough to address the problem—for example, with respect to standards for sewage discharges. Environmental advocates have raised concerns about the adequacy of existing laws for managing these wastes, and they contend that enforcement is weak.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Preface

xi

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In 2000, Congress enacted legislation restricting cruise ship discharges in U.S. navigable waters within the state of Alaska. California, Alaska, and Maine have enacted state-specific laws concerning cruise ship pollution, and a few other states have entered into voluntary agreements with industry to address management of cruise ship discharges. Meanwhile, the cruise industry has voluntarily undertaken initiatives to improve pollution prevention, by adopting waste management guidelines and procedures and researching new technologies. Concerns about cruise ship pollution raise issues for Congress in three broad areas: adequacy of laws and regulations, research needs, and oversight and enforcement of existing requirements. Legislation to regulate cruise ship discharges of sewage, graywater, and bilge water nationally has been introduced in the 111th Congress (H.R. 3888 and S. 1820). This chapter describes the several types of waste streams that cruise ships may discharge and emit. It identifies the complex body of international and domestic laws that address pollution from cruise ships. It then describes federal and state legislative activity concerning cruise ships in Alaskan waters and activities in a few other states, as well as current industry initiatives to manage cruise ship pollution. Issues for Congress are discussed.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 1

INTERNATIONAL APPROACHES TO UNDERWATER CULTURAL HERITAGE Mark Staniforth, James Hunter and Emily Jateff

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ABSTRACT This chapter considers international approaches to Underwater Cultural Heritage such as the United Nations Convention of the Law of the Sea (UNCLOS) the 1996 ICOMOS Charter for the Protection and Management of Underwater Cultural Heritage and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. The paper will also consider three case studies—the United States, Australia and Spain—to examine different national approaches to underwater cultural heritage law. The most common mechanism by which underwater archaeological sites throughout the world are protected is by using cultural heritage legislation (Bowens 2009: 45-52). In 1982 UNCLOS provided that ‗States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose‘ (FletcherTomenius & Forrest 2000). National and state (or provincial) governments have the right to enact and enforce legislation and regulations for the protection and preservation of underwater cultural heritage lying in or under their internal waters and territorial seas sometimes have enacted legislation that includes the Exclusive Economic Zone (EEZ) as far out as the edge of the Continental Shelf. In more recent years, multilateral attempts to control activity on, and to create standards for, the conduct of archaeological research on underwater cultural heritage sites, such as shipwrecks, have led to the creation of firstly the ICOMOS Charter for the Protection and Management of Underwater Cultural Heritage secondly, and perhaps more significantly, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.

INTRODUCTION The most common mechanism by which underwater cultural heritage (UCH) sites throughout the world are protected is through the enactment of cultural heritage legislation

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

2

Mark Staniforth, James Hunter and Emily Jateff

(Bowens, 2009: 45-52; Camarda and Scovazzi, 2002). National and state, or provincial, governments have the right to enact and enforce legislation and regulations for the protection and preservation of UCH located within, or under, their internal waters, territorial seas and Exclusive Economic Zone (EEZ). In some cases, these laws apply as far out as the edge of the Continental Shelf. Many countries around the world have introduced legislation for the protection of all, or part, of their UCH. Underwater cultural heritage management includes the enacting of legislation, establishment of an inventory (such as a database), and a system for the assessment of the significance of underwater archaeological sites. It involves listing and investigation of underwater cultural heritage sites and activities such as the establishment of protected zones and underwater archaeological preserves. It should also include enforcement of the provisions of relevant legislation and administrative regulations (Nutley, 1996). Investigation of UCH, including excavation, should always conform to all legislative and administrative requirements of the nation or state/province within whose lands, internal waters, territorial seas or EEZ the work is being conducted. Unfortunately, some countries have chosen not to protect their underwater cultural heritage and continue to allow treasure hunting to take place within their jurisdictions. Treasure hunting has been defined as the search for intrinsically valuable objects from archaeological sites for personal profit or private gain. Treasure hunting, or tomb robbing on land, has largely been made illegal on archaeological sites in most countries but the trade in illegal antiquities, including items stolen from archaeological sites, remains one the world's largest and most lucrative illegal activities. In the popular imagination shipwrecks are synonymous with treasure. Treasure hunters, or salvors as many of them prefer to be called, have long been active in searching for and recovering precious metals, jewellery, porcelain and other valuable objects from shipwrecks. These objects are then sold, usually at auction. Unfortunately treasure hunting in the underwater environment has not been treated in the same way that it has on land and salvor activities continue today with tacit approval and support of certain national governments as well as some museums (Hutchinson, 1996; Johnstone, 1993; Koschtial, 2008; Zamora, 2008). Many national governments claim to retain title to (or sovereignty over) ship and aircraft wrecks that once formed a part of that nation‘s military forces (Army, Navy or Air Force) by means of a process commonly referred to as ‗sovereign immunity‘. These property rights are not lost to that government due to the passage of time and apply whether the vessel or aircraft was lost in national, foreign or international waters (Dromgoole, 1999). Some countries, such as the U.K. and the U.S. have enacted specific legislation which addresses and controls activities aimed at military vessels considered to be underwater cultural heritage, even when that cultural heritage lies in international waters or within the jurisdiction of another nation. The implications of sovereign immunity will be explored in the Discussion section. In 1982 the United Nations Convention of the Law of the Sea (UNCLOS) provided that ‗States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose‘ (Fletcher-Tomenius and Forrest, 2000). Nevertheless, in most cases there has been little regulation of underwater archaeology beyond the limits of state territorial jurisdictions (i.e. in international waters), the notable exception being the White Star passenger liner RMS Titanic. The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (UNESCO-CPUCH) entered into force in 2009 and provides clear protection principles and minimum standards for the protection and investigation of UCH as well as a State cooperation system that allows protection outside

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

International Approaches to Underwater Cultural Heritage

3

territorial waters. It is being ratified by increasing numbers of countries around the world (31 to date), and even when a nation or state has not ratified the Convention some are adopting the Annex to the Convention as guidelines for the practice of underwater archaeology and the preservation of UCH. This chapter will consider international efforts to provide guidelines for the protection of UCH in the form of conventions and charters. In addition, this chapter considers underwater cultural heritage legislation in three countries as case studies: Spain, Australia and the United States. Each of these countries has enacted domestic legislation, usually at both national and state (or provincial) level, for the protection and preservation of at least part of their UCH. All three are relatively wealthy, socalled ‗first world‘ nations and are among the top twenty (G20) of the world‘s richest economies. Therefore it can be argued that they can ‗afford‘ to provide the required administrative infrastructure necessary, to a greater or lesser extent, to implement and enforce such legislation. These countries also represent different parts of the world – Europe (Spain), the Americas (the U.S.) and Asia-Pacific (Australia). These three examples were chosen on the basis that one (Spain) has ratified UNESCO-CPUCH, one (Australia) is currently considering whether it will ratify the Convention and the last (the U.S.) is considered very unlikely to ratify it in the foreseeable future. The Discussion will consider what options for smaller, less wealthy countries might arise from ratification of UNESCO-CPUCH and/or the enactment of national UCH legislation.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

INTERNATIONAL AGREEMENTS Underwater archaeological sites can be preserved if buried under sediment on the seabed, in some cases for hundreds or even thousands of years. The international nature of shipping, for example, where a vessel may be built in one country, be sailing from a second country to a third country and have a crew made up of citizens of many countries, often leads to situations where there may be more than one nation with interests in a particular underwater archaeological site and its contents. Finding multi-lateral ways of recognizing different countries‘ interests is going to require new approaches which accept, and embrace, notions of shared heritage rather than, say, concepts of ‗national‘ heritage. In fact it was not until the mid 20th century that cultural heritage values of such sites were considered at all. Shipwrecks, for example, were commonly subject to Admiralty Law, Merchant Shipping legislation, salvage law and the law of finds, all of which allowed underwater sites to be salvaged with no regard to their archaeological or heritage values (Carducci, 2006). This began to change after the Second World War with the growing realization that underwater cultural heritage was threatened by the activities of rapidly increasing numbers of scuba divers as well as coastal development. In 1977 the Council of Europe took an interest in UCH and recommended development of a European Convention on the topic but this never came to fruition (O‘Keefe, 2002: 15). UNCLOS was the third, and most recent, United Nations international agreement to define the rights and responsibilities of nations in terms of their use of the world‘s oceans (UNCLOS http://www.un.org/Depts/los/convention_agreements/texts/unclos/closindx.htm). UNCLOS III came into force in 1994, and to date 158 countries and the European Community have ratified it. Among other things it defines the key zones of the world‘s

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

4

Mark Staniforth, James Hunter and Emily Jateff

freshwater, seas, and oceans as internal waters (such as lakes, rivers and inlets), territorial seas (out to 12 nautical miles), contiguous zone (from 12 miles to 24 miles), Exclusive Economic Zone (or EEZ - out to 200 nautical miles) and international waters (called ‗the Area‘ - beyond 200 nautical miles). Articles 149 and 303 of UNCLOS provide the basis for the obligation of states parties to protect UCH. Furthermore, Article 303, which is headed ‗Archaeological and historical objects found at sea‘, provided that ‗States have the duty to protect objects of an archaeological and historical nature found at sea and shall cooperate for this purpose‘ (UNCLOS Part XVI Article 303 http://www.un.org/Depts/los/ convention agreements/texts/unclos/closindx.htm). The protection and preservation of UCH was not, however, a high priority during negotiations for UNCLOS III. Instead, debate focused more on issues like energy (oil and gas) extraction and fishing rights. Nevertheless, it did provide a basis for other international agreements that are more focussed on underwater cultural heritage (Brown, 1996: 325; Lee, 2006; O‘Keefe, 2002). In more recent years, multilateral attempts to control activity on, and to create standards for the conduct of archaeological research involving underwater cultural heritage sites including shipwrecks, have led to the creation of two extremely important international charters or conventions (Lund, 2006; Maarlevelde, 2008). The first is the ICOMOS Charter for the Protection and Management of Underwater Cultural Heritage 1996 which was ratified by the 11th ICOMOS General Assembly in Sofia, Bulgaria in October 1996 see: http://www.international.icomos.org/charters/underwater_e.htm The International Council on Monuments and Sites (ICOMOS) is a non-government organization (NGO) with a professional membership that includes architects, archaeologists, art historians, geographers, engineers and town planners. All work to promote the application of theory, methodology and scientific techniques to the preservation and conservation of architectural and archaeological heritage. ICOMOS has issued a series of international charters dealing with the preservation and protection of cultural heritage, including the Underwater Cultural Heritage Charter that was developed by the ICOMOS International Committee on the Underwater Cultural Heritage (ICUCH), founded in 1991. Also during this period (1988-1996) the Cultural Heritage Law Committee of the International Law Association (ILA) produced a draft Convention on the Protection of the Underwater Cultural Heritage which acted as a blueprint for the 2001 UNESCO Convention (O‘Keefe 2002:2123). The legacy of the ICOMOS Charter is that it has largely been taken up to form the Annex (or Rules for activities directed at UCH) to UNESCO-CPUCH. The Annex of the UNESCO Convention provides detailed rules that include how a project should be designed, guidelines about the competence and qualifications of personnel, and methodologies for conservation and site management (van Tilburg, 2006). The second and more significant charter is UNESCO-CPUCH (see: http://portal.unesco. org/en/ev.php-URL_ID=13520&URL_DO=DO_TOPIC&URL_SECTION=201.html). It defines underwater cultural heritage as ‗all traces of human existence having a cultural, historical or archaeological character, which have been partially or totally under water, periodically or continuously for at least 100 years‘ (UNESCO Information Kit). Underwater archaeological sites can include the remains of ships (shipwrecks), boats (boat finds), other watercraft or vessels and aircraft underwater, as well as cultural material that was accidentally dropped, lost overboard, or deliberately deposited into the water body. Archaeological evidence can include the remains of structures that were originally built wholly or partly underwater (such as fish traps, crannogs, bridges, piers, jetties and wharves). In addition,

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

5

underwater archaeology may examine the remains of human activity that originally took place on dry or marshy land that has subsequently been inundated (or submerged), either by rising water levels or by marine (or fluvial) erosion. The Convention recognizes that UCH is an important part of the cultural heritage of humanity (Delgado, 1997; Staniforth, 2007b: 124; UNESCO Information Kit). The basic principle of UNESCO-CPUCH is that states parties are obliged to provide effective protection for the preservation of underwater cultural heritage, usually in the form of domestic national, and state or provincial, legislation. Additionally, in situ (on the seabed) preservation of UCH should be the preferred option, and such heritage should not be commercially exploited (or sold). Finally, states parties are encouraged to promote information sharing, and collaborate in underwater archaeology training, technology transfer, and raising public awareness about UCH (Manders 2008; UNESCO Information Kit). UNESCO-CPUCH entered into force on 2 January 2009. This milestone was achieved when Barbados became the 20th State Party to ratify it on 2 October 2008. As each subsequent country ratifies, and undergoes a three-month waiting period, the Convention will also apply to that country (as of I June 2010, 31 countries have ratified the Convention). UNESCO classifies the world into five regional areas: Africa, Arab States, Asia and Pacific, Europe and North America, and Latin America and the Caribbean. According to these regional divisions, the 31 countries that have ratified UNESCO-CPUCH are: Africa (4) – Libyan Arab Jamahiriya, Nigeria, Gabon and Tunisia; Arab States (4) – * Libyan Arab Jamahiriya [*Note: this country is classified in two regional areas], Iran, Jordan and Lebanon; Asia and Pacific (1) - Cambodia; Europe and North America (13) – Italy, Croatia, Spain, Lithuania, Bulgaria, Portugal, Ukraine, Romania, Montenegro, Slovenia, Slovakia, Bosnia-Herzegovina and Albania; and Latin America and the Caribbean (10) – Panama, Mexico, Paraguay, Ecuador, Saint Lucia, Cuba, Barbados, Grenada, Haiti, St. Kitts & Nevis. It is worth noting that threequarters of the signatories are from Europe, Latin America, and the Caribbean. The inaugural meeting of States Parties to the 2001 Convention took place on 26-27 March 2009 at UNESCO Headquarters in Paris. Present at the meeting were 19 of the 20 States Parties to the Convention with voting rights, while Albania, Grenada, Slovakia, and Tunisia attended as observers (they ratified the Convention less than three months before the meeting). Seventy-one States that are non-Parties to the Convention, as well as five intergovernmental organizations, and 23 NGOs attended as observers. See UNESCO‘s website at: http://portal.unesco.org/culture=DO_ TOPIC&URL_SECTION=201.html A second meeting of States parties took place in December 2009. Multilateral international agreements such as UNESCO-CPUCH are not the only way of dealing with issues that arise between governments about underwater cultural heritage. Australia, for example, has a very long history of recognizing foreign country claims to ownership of, or sovereignty over, both flagged vessels and vessels owned or operated by companies or organizations in foreign countries. Even before enactment of the Historic Shipwrecks Act (1976) Australia had negotiated an agreement with the Netherlands with regard to Dutch East India Company (VOC) ships wrecked in Australian waters and established the Australia-Netherlands Committee on Old Dutch Shipwrecks (ANCODS). Other examples include recognition of Japanese interests in two Japanese World War II submarines: the I-125 submarine lost off the Northern Territory and M24 midget submarine lost off Sydney in New South Wales (McCarthy, 1998, Smith 2008). Other examples include

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

6

Mark Staniforth, James Hunter and Emily Jateff

RMS Titanic, which has been the subject of a multi-party agreement that will be detailed in the Discussion section of this chapter.

CASE STUDIES

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Australia During the 1960s and 1970s Australia became a world leader in the development and introduction of legislation for the protection of historic shipwrecks. Australia has more than 30 years experience in the inventory of certain kinds of underwater and maritime cultural heritage. Legislation for the protection of shipwrecks, for example, has been enacted at both federal (or Commonwealth) and state level in Australia. The State of Western Australia first introduced legislation designed to protect shipwrecks in 1964 with the Museum Act Amendment Act, which specifically addressed four Dutch shipwrecks dating from the 17th and 18th centuries. This was followed by the Maritime Archaeology Act 1973, which extended protection to all shipwrecks lost before 1900 (Green, 1978; Henderson, 1978). In 1976, a successful High Court challenge to Western Australian state legislation on jurisdictional grounds suggested that federal (national) legislation was required for the protection of underwater cultural heritage sites within the territorial sea (out to 12 nautical miles) and further offshore (for example, in the contiguous zone and Exclusive Economic Zone or EEZ). As a result, the Australian Federal Government (the Commonwealth of Australia) enacted the Historic Shipwrecks Act (HSA) 1976, which initially only automatically applied to waters in the Australian national territories consisting of the Northern Territory and seven external territories, including Norfolk Island. It also should be noted that HSA only applies to the remains of ships and their associated articles as ‗historic shipwrecks‘ and ‗historic relics‘, and not to other kinds of UCH such as submerged indigenous archaeological sites or aircraft underwater (Jeffery, 2006: 123). Some state government legislation, however, does cover a wider range of maritime and underwater heritage sites, including aircraft and sites which are 50 years or older such as Victoria‘s Heritage Act 1995 (as amended in 2008) and the New South Wales (NSW) Heritage Act 1977 (as amended in 1998). The enactment of the Australian Federal Government‘s Historic Shipwrecks Act in 1976 fundamentally changed the basis for legislative protection and management of historic shipwrecks in Australia (McCarthy, 2006: 3). From being an activity which, throughout the 1960s and first half of the 1970s, had been almost exclusively carried out only in one state (Western Australia), all of the Australian states had to at least consider their options for the protection and management of historic shipwrecks. Australia is a federation of six states, each with its own government system and bureaucracy and so this change took some considerable time to work through. Some states like Western Australia and Queensland moved relatively quickly to request that the Federal Government apply HSA to their state waters (Jeffery, 2006: 125). Western Australia already had existing legislation in the form of the Maritime Archaeology Act 1973, which applied to sites that were not covered by Federal legislation. These included sites buried on land above the High Water Mark (HWM) and in waters within the limits of the state, such as rivers and lakes. Other states like South Australia and Victoria subsequently enacted their own parallel state legislation in the form of the (South Australia)

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

7

Historic Shipwrecks Act 1981 and (Victoria) Historic Shipwrecks Act 1980. Following the introduction of a tertiary course in maritime archaeology in Western Australia in 1980, a number of states appointed qualified maritime archaeology graduates to positions within their government agencies and museums responsible for historic shipwrecks. A few states lagged behind, with Victoria and Tasmania taking six years (until 1982) to request that HSA apply to waters around their coast. NSW, on the other hand, despite having requested the proclamation of HSA to cover waters off its coast in 1979, managed to hold out for nearly another a decade, until 1988, before appointing the first qualified maritime archaeology graduate to a position in the NSW Department of Planning (Anderson, et al. 2006; Green, 1995; Hosty and Stuart, 1994; Jeffery, 1999 and 2006; McCarthy, 1998 and 2006; Staniforth, 2000). Nevertheless, the 1980s were a golden decade in terms of job growth for maritime archaeology graduates in the field of underwater cultural heritage management. From 1976 until 1993, HSA worked on what is referred to as a ‗case-by-case‘ basis. Essentially, a case had to be made to the Commonwealth Minister for each individual shipwreck to be declared an ‗historic shipwreck‘ (Cassidy 1991). As a result of amendments to the legislation in the early 1990s, the Historic Shipwrecks Act 1976 now provides legislative protection to all shipwrecks which sank more than 75 years ago (by means of ‗blanket‘ protection based on a rolling date) and are located in the territorial sea, contiguous zone, and Exclusive Economic Zone (EEZ) from the HWM out to 200 nautical miles offshore. It is also still possible to individually make a case for a shipwreck that is less than 75 years old to be protected under HSA. Recent examples include the World War II wrecks HMAS Sydney and the German commerce raider Kormoran, which both sank in 1942. The move in 1993 from a ‗case-by-case‘ basis to ‗blanket‘ protection effectively increased the number of protected historic shipwrecks nationwide from approximately 150 to 5,000 (Jeffery, 2006: 127). Additionally, in every state there is either similar historic shipwrecks legislation, or generic cultural heritage legislation that covers historic shipwrecks in waters internal to the state, such as rivers, lakes and certain bays, as well as sites located on or under land above the HWM. According to the Australian Federal Government, historic shipwrecks are protected by HSA whether or not their precise location is known and regardless of their ownership status. Should any shipwreck or article associated with a shipwreck be discovered, the Act requires that the find be reported to the appropriate authorities. Except in a few cases where Protected Zones have been established around particular sites, scuba diving is permitted on historic shipwrecks but it is an offence to destroy, damage, cause interference with or dispose of a historic shipwreck or relic, or cause a historic shipwreck or relic to be removed without a permit issued under the relevant Act. A small number of highly significant, or fragile, historic shipwrecks lie within Protected Zones with a maximum area of 200 hectares and it is an offence to enter, or scuba dive in a Protected Zone without a permit. Since the early 1980s the federal government has delegated part of the responsibility for the administration of HSA to a state government agency or museum in each state (Anderson, et al. 2006: 140-141). Annually the federal government provides a limited amount of funding to each state which Jeffery (2006: 129) has described as ‗inadequate for a Federal initiative‘ and a ‗paltry sum‘. Whether the state agency (called the delegated authority) was a museum, as it proved to be in Western Australia, Queensland and the Northern Territory, or a government heritage agency, as it was in Victoria, NSW, South Australia and Tasmania (which was the only state to select a National Park Service as a delegated authority), appears

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

8

Mark Staniforth, James Hunter and Emily Jateff

to have been an historical accident or a case of who put their hand up first. Nevertheless, the inherent conflict of interest between museums as excavators, or consumers, of historic shipwrecks and their role as protectors of historic shipwrecks, enforcers of the Historic Shipwrecks Act and issuers of permits to disturb and excavate shipwreck sites has been obvious, and regularly challenged, over the years (Staniforth, 1993 and 2007a). By 1988 all Australian states had some sort of program in underwater cultural heritage management and most had already grown as big they were going to. As a result, more than twenty years later, there has been little or no job growth in the sector and many of the positions are still held by the same person who held it in 1988, although that is beginning to change as the individuals who occupy these positions leave, retire or die. Succession planning is widely acknowledged to be a significant issue, but financial constraints have effectively prevented action in most cases. The delegated authority in each state plays an important role in the administration and enforcement of legislation, but as Cooper, et al. (1995) have suggested this management role is rarely the highest priority for any archaeologist working for government. Nevertheless, Australian UCH managers have developed some effective enforcement programs including the appointment and training of Historic Shipwrecks inspectors and have made a small number of successful prosecutions for infringements of historic shipwrecks legislation and regulations (Cassidy, 1991; Gurney, 1994; Jeffery, 1987 and 1999; Nutley, 1998 and 2003). In addition, many protected zones and some other sites that are considered threatened have had Conservation Management Plans (CMPs) based on the Burra Charter written for them (Australia ICOMOS, 1999). CMPs guide stabilisation works and monitoring programs as well as make recommendations about research, excavation, conservation, public access, interpretation and management of the sites. Of considerable importance have been public education programs established and operated in most states (Anderson, et al. 2006; McCarthy, 2003; Nash, 2003; Nutley, 1987). One of the most publicly visible features of these public education programs has been what Mike McCarthy (1981) first termed the ‗underwater display case‘, and which have developed into historic shipwreck or maritime heritage trails in most Australian states (Philippou and Staniforth, 2003; Smith, 2003; Strachan, 1995). Other successful examples of public interaction are maritime heritage websites maintained by museums and government agencies that provide opportunities for the non-scuba diving public to learn about UCH. In addition to HSA, other federal legislation also plays a role in the management and protection of underwater cultural heritage and maritime heritage in Australia. This includes the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). While not specifically designed for the protection of historic heritage, the 2003 amendments to the EPBC Act made provision for a National Heritage List of places of outstanding heritage value to Australia. UCH sites such as the Batavia (1629) shipwreck and survivor camp sites and HMVS Cerberus have been specifically included on the National Heritage List, and other underwater cultural and maritime heritage sites are included within larger scale designations such as the Great Barrier Reef. Another piece of federal legislation that affects underwater cultural heritage is the Protection of Moveable Cultural Heritage Act 1986, which covers portable artefacts from historic shipwrecks as ‗Class B‘ objects that cannot be exported from Australia unless in accordance with a permit (Anderson, et al. 2006; Jeffery, 2006). On Thursday, 4 June 2009, Peter Garrett, the Commonwealth Minister for the Environment, Heritage and the Arts, announced a review of the Historic Shipwrecks Act and

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

International Approaches to Underwater Cultural Heritage

9

invited submissions for a discussion paper that includes the possibility of Australia ratifying UNESCO-CPUCH. The closing date for submissions was 17 July 2009; 32 submissions were registered (http://www.environment.gov.au/heritage/shipwrecks/review/submissions.html). Most of the submissions were in favour of Australia ratifying UNESCO-CPUCH, and it is likely that the Australian government will move to ratify the Convention at some future date. Nevertheless, this process will probably involve new, or considerably amended, legislation at both federal and state level and this will clearly take some time to enact.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Spain Prior to 1985, legislation for the protection of Spanish archaeological heritage consisted of the Law of Archaeological Excavations of 7 July 1911, the Law of 10 December 1931 on the Sale or Disposal of Artistic, Archaeological and Historical Material More Than 100 Years Old, and the Law of 13 May 1933 on the Defence, Preservation and Expansion of the National Historic and Archaeological Heritage. Together, these Laws created frameworks for archaeological excavation, and protection for archaeological resources of a certain age, including the regulation of international trade in cultural heritage (Fernández, 1989: 182-183). Unfortunately, this legislation was not administratively supported and archaeological heritage was not effectively protected. Exploitation of maritime resources (for subsistence and tourism) continues to be prevalent within Spanish coastal and territorial waters. Neguerula, (2000: 180) credits ―hard-sell marketing of many diving clubs,‖ and a ―passive attitude on the part of officialdom‖ with the degradation and disbursement of coastal maritime archaeological resources in Spanish waters. Following the revolution and subsequent Constitution of 1978, the Spanish government increased support for cultural heritage in the wake of renewed feelings of nationalism and protection of associated heritage by enacting the Spanish Historical Heritage Law No. 16 of 1985 (the Law). Initially, the Law of 1985 provided rules for granting permits for archaeological excavation (Prott and O‘Keefe, 1989: 501). This law is pertinent to all cultural heritage over 100 years of age located within Spain, Spanish territorial waters and the continental shelf, as no specific underwater cultural heritage legislation exists. Additionally, complementary legislation was enacted in all eight regional autonomous governmental centers. Spanish Autonomous Regions received powers and produced complementary regional legislation from 1979-1983. In 1989, an appeal from the Andalusian government was put to the Ministry of Culture and upheld, allowing for regional management of UCH (Álvarez, 1989: 146, 149). Primary among the facets of this law is the acceptance of historical heritage as community property: Article 1 claims ―access to all the property that constitutes our historical heritage,‖ and Article 14 addresses protection of resources in Spanish territorial waters whether they be ―fixed or moveable.‖ The important aspect of the Law is that it places responsibility for administration on public officials to approve all heritage activities within a legal framework (Article 42). Spanish control of ‗archaeological patrimony‘/‘historical heritage‘ also includes all heritage ―in territorial waters or on the continental shelf‖ (Álvarez, 1989:144). The Law also subverts existing Article 351 of the Civil Code by stating all historic materials found by accident automatically revert to government control; with a stipulation for

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

10

Mark Staniforth, James Hunter and Emily Jateff

both finder and land owner (Fernández, 1989:191). Articles of Spanish patrimony are deemed ―public property‖ (Álvarez, 1989:145). Existing Spanish cultural heritage legislation mirrors the protective measures included within UNESCO-CPUCH and aligns with the perception that the Convention can be used as a model for developing and enhancing existing national legislation (Dromgoole, 2006). Spanish legislation is primarily concerned with national legacy, or protection of the historical heritage of Spain. Within the Law, Spain places emphasis on preservation of historical heritage in situ as a first option (Álvarez, 1989: 146). The Law laid the groundwork for the Spanish approach to cultural heritage in the new millennium and helps clarify the Spanish approach to and ratification of the 2001 UNESCO Convention. Spain has a long history of maritime interaction and infrastructure as the gateway to the Atlantic Ocean and points beyond, and therefore takes a firm stance in the management and protection of its submerged cultural resources. In the early 1980s maritime archaeological research in Spain was incorporated into the National Archaeological Museum and National Centre for Underwater Research (Neguerula, 2000). In response, three regional governments instituted their own centres of research (Andalusia, Valencia and Catalonia) (Neguerula, 2000: 184). For example, Catalonia opened the Subaquatic Archaeological Department of the Girona Archaeological Technical Service in 1984, which in 1992 became the Subaquatic Archaeological Centre of Catalonia (CASC). From 1996, CASC has formed part of the Archaeological Museum of Catalonia. As with most centralised systems in maritime archaeology, the primary foci of the Archaeological Museum and CASC to date have been systematic site survey and protection of resources. In 1996, the Centre initiated a Protection of Maritime Heritage project (Neguerula, 1996; 2000). The Centre performs monitoring and inspection of coastal sites through a cooperative arrangement with the Civil Police, in particular the Special Sub-Aquatic Operations Section (GEAS) and the Coast Guard. The Centre also implemented an amnesty program that allows divers—who may have at one time ‗looted‘ sites—to become volunteer divers for Centre projects, thereby using their interest in maritime archaeology for the common good. A third, and more visible method of wreck protection, was the development of the ‗strong box‘, a steel structure placed over wrecks of interest and ‗locked‘ when the vessel is not under investigation. Two such strong boxes were installed over Phoenician shipwrecks in Mazarron in 1999 (Neguerula, 2000: 193-194). Illicit removal and/or ―movement‖ of artefacts from the in situ environment is expressly forbidden by the 1969 European Convention on the Protection of the Archaeological Heritage, which entered into force in 1970, and of which Spain is a signatory (Prott and O‘Keefe, 1984: 224; Prott and O‘Keefe, 1989: 675). Spain was one of the first signatories of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. Espósito and Fraile (2004: 206) credit the Spanish delegation with ―supporting the adoption of a universal convention, even at the cost of compromising some of its views‖ at the initial UNESCO member states discussion. Spain believed ―it could complement the Convention with bilateral or regional agreements…[and]…cooperate with the coastal state in their recovery, preservation and public exhibition‖ (Espósito and Fraile, 2004: 206). Commitment to this standpoint is evidenced in later Spanish interactions with coastal states on the matter of underwater heritage protection, particularly with regard to academically investigated underwater heritage projects undertaken in United States territorial waters (i.e., Santa Rosa Island Wreck; pers. comm. James Hunter, 3 Sept. 2009). Spanish permission to investigate has been granted for

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

11

multiple wrecks in United States waters, following the decision of Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels 221 F.3d 634 C.A. 4 (Va.), 2000 (re. Spanish sovereign vessels Juno and La Galga). This case set precedent that permission must be granted by the Ministry of Culture prior to exploration or recovery of Spanish state shipwrecks in any waters (Neguerula, 2000: 184; White, 2001). But why has Spain only recently become interested in the protection of vessels in foreign or international waters? What was it that inspired Spain to seek permission for excavation of vessels lost in non-Spanish waters? Prior to the Juno and La Galga case, Spanish plate fleet vessels Nuestra Señora de Atocha and Margarita (1622) had been located and salvaged in Florida, without Spanish permission, with artefacts recovered in the amount of US$60 million (Wade, 1981). In 1980, the U.S. Federal Court upheld a decision to grant Treasure Salvors full rights to the shipwrecked remains of both vessels (Florida Dept. of State v. Treasure Salvors, Inc. 458 U.S. 670, 102 S, Cr. 3304.73 L Ed. 2d 1057, 1983 AMC 144 (1982). Initial beliefs were that Spain was motivated by greed, but others relate it to an extension of nationalist-driven interest in archaeological patrimony/historical heritage located outside territorial borders. As profit-minded remote oversight would not be viable, ―the cost of managing [shipwrecks]…will potentially offset any windfall profits‖ (Stemm, 2000). Protection of government ships operated for non-commercial purposes is allowed under UNESCO-CPUCH, where it is not under UNCLOS. This looser definition allows Spain more room to claim sovereign immunity of its vessels in foreign waters. Espósito and Fraile (2004: 206) state, ―according to the Spanish legal system, international law takes precedence over domestic law,‖ which includes special consideration for flag states with respect to the consent and consultation process. Spain has taken a firm stance against salvage of its sovereign vessels, regardless of location and has also barred access to shipwrecks sites via adherence to Article 30 of the Salvage Convention. Ratification of the UNESCO Convention does not prevent states parties from entering into bilateral agreements for the protection and management of UCH. Most commonly, such agreements are between the state of cultural origin and the state of historical or archaeological origin (Garabello, 2003: 130). A selection of bilateral agreements between Spain and other states parties for the protection of underwater cultural heritage include the United Kingdom (Cultural Convention between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Spain 1960) , Brazil (1960), Greece (1966), Venezuela (1973) and Ecuador (1975) (Prott and O‘Keefe, 1989). The above views of policy and management explain the Spanish approach to underwater cultural heritage management in foreign waters. Further enforcement of the relationship between the United States and Spain as to the protection of Spanish vessels was included within the Protection of Sunken Warships, Military Aircraft and Other Sunken Government Property 69 Fed. Reg. 5647, 5647 (Dept. of State Feb. 5, 2004), which states, ―[i]n accordance with international and Spanish law, Spain has not abandoned or relinquished its ownership or other interests…except by specific action.‖ This case was tested not more than three years later when commercial salvage firm Odyssey Marine Exploration, Inc. (Odyssey) announced the location of a shipwrecked vessel (code named Black Swan) at an undisclosed location in the mid-Atlantic Ocean (Area) (Odyssey Press Release, May 18, 2007). In Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel the Kingdom of Spain questioned the right of Odyssey to salvage or otherwise disturb the remains of a Frigate of War of the Royal Navy of Spain, Nuestra Señora

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

12

Mark Staniforth, James Hunter and Emily Jateff

de las Mercedes, lost 4 October, 1804 with over 900,000 coins aboard. Spain claimed that Odyssey violated Spanish and international law by salvaging materials from the vessel without Spanish consent. Odyssey wished to claim ownership of the vessel and receive a salvage award. However, in July 2008, the court ruled in favour of the Kingdom of Spain, noting that Odyssey knowingly violated the Mercedes with full knowledge of its identity and origin and removed portions of its cargo for eventual sale (Verified Claim of the Kingdom of Spain at 1–2, Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, No. 8:07-CIV-614-T-24MAP, M.D. Fla. May 31, 2007). Nuestra Señora de las Mercedes was proved a sovereign vessel of Spain and Odyssey was required to pay punitive damages to the Kingdom of Spain. Such a ruling sets precent for underwater cultural heritage management within the Area under UNESCO-CPUCH.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

United States of America The United States possesses a particularly rich and varied submerged cultural heritage, ranging from inundated terrestrial sites associated with the earliest phases of the North American continent‘s prehistoric occupation, to ship and aircraft wrecks from the modern era. In addition to the nation‘s vast coastal zones, underwater archaeological sites are found in many American rivers, lakes and other navigable waterways. Since the beginning of the 20th century, legislation has existed within the United States that dictates cultural properties should be provided special attention by agencies with jurisdictional responsibility for them. Although only a few of these laws specifically apply to underwater cultural heritage (and will be addressed in this section), others have been adapted under certain circumstances to protect specific shipwrecks and other submerged archaeological sites. An excellent discussion of the latter can be found in Varmer and Blanco (1999: 213-221). The first United States law to specifically address the nation‘s underwater cultural heritage was the Abandoned Shipwreck Act of 1987 (ASA). Its passage was prompted in part by commercial salvage of HMS De Braak, a British Royal Navy brig-sloop that capsized off Cape Henlopen, Delaware in 1798. Purported to be carrying a treasure of Spanish gold and silver when it was lost, De Braak was the subject of numerous searches to locate and recover its legendary cargo. Eventually located in April 1984, the wreck‘s subsequent salvage resulted in comprehensive state and federal legal violations (Shomette, 1993). Considered one of the worst maritime archaeological disasters in American history, the De Braak salvage was successfully promoted by the historic preservation community as a worst-case scenario to generate U.S. Congressional support for ASA (Shomette, 1993; Beard, 1989). ASA established federal ownership over the majority of abandoned historic shipwreck sites in U.S. waters, and created a framework within which those properties are managed. State governments had previously claimed title to, and control over, abandoned shipwrecks on state submerged lands via the Submerged Lands Act of 1953. By the 1980s, more than half of the states in the nation had enacted laws and initiated programs to protect and manage their UCH (Aubry, 1997: 16). However, federal Admiralty Courts also asserted jurisdiction over abandoned shipwreck sites (as in the case of De Braak), and tended to view them as commodities lost at sea in need of salvage and return to commerce. Ensuing litigation over

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

13

ownership and regulatory control of historic shipwrecks tended to be inconsistent, varying from court to court and state to state (Varmer and Blanco, 1999; Aubry, 1992). These issues were resolved by ASA, which enabled the U.S. government to assert title over three classes of abandoned shipwrecks: those embedded in state submerged lands; embedded in coralline formations protected by a state on its submerged lands; and abandoned shipwreck sites located on state submerged lands and included—or determined eligible for inclusion—on the National Register of Historic Places. The law applies in the nation‘s fifty states, the District of Columbia, and its overseas territories. Shipwreck sites protected under ASA are defined as vessels or wrecks, including their cargo and contents, located within three nautical miles of the United States coastline (nine nautical miles in states bordering the Gulf of Mexico), or within the nation‘s internal navigable waterways. Historic shipwrecks are designated by a loss or abandonment date that exceeds 50 years from present, and are subject to ―blanket‖ protection based on a rolling date (Abandoned Shipwreck Act, 1987). Once the U.S. government asserted title to historic shipwrecks under ASA, it transferred title and management responsibility to government entities that owned the land in which these sites were contained. Consequently, individual state governments assumed title to shipwrecks located on their respective lands. The same principle designated title-holders for shipwreck sites located on federal lands and Indian lands. One particularly significant provision of the Act specifies that the laws of salvage and finds are not applicable to historic shipwrecks claimed by the U.S. government, and effectively precludes them from federal Admiralty Court jurisdiction. This had the effect of transforming historic shipwrecks and their cargoes from salvageable commercial commodities into sites of intrinsic archaeological and historical significance. Not surprisingly, passage of ASA sparked considerable controversy and has been challenged in Admiralty Court; however, its constitutionality has been upheld in a vast majority of cases (Elia, 2000: 47; Varmer and Blanco, 1999: 207; Aubry, 1992; Croome, 1992). ASA identifies historic shipwrecks as multi-use resources that are not to be limited to any one purpose or interest group. States and other title-holding entities are directed to provide reasonable public access to shipwrecks under their purview and protect natural resources and aquatic habitats associated with these sites. Further, they are encouraged to study, interpret, protect, and preserve historic wrecks through the creation of underwater parks, shipwreck trails, and other publicly accessible protective zones. Guidelines were developed by the U.S. National Park Service (NPS) Federal Archaeology Program to assist designated governmental agencies with carrying out their responsibilities under the Act. This led a number of states to develop specific legislation for the protection of UCH under their purview, as well as their own underwater archaeology programs. One problematic aspect of ASA from an archaeological and historic preservation standpoint is that it acknowledges commercial salvors and treasure hunters as ‗interest groups‘ and allows for private sector recovery of material from historic shipwrecks when those activities are deemed to be ‗in the public interest‘. Issues also persist as to the Act‘s limited scope, and the legal definition of terms contained within it (Elia, 2000: 46; Varmer and Blanco, 1999: 212; Lenihan, Askins and Russell, 1997: 443). Varmer and Blanco (1999: 221) have suggested that comprehensive legislation protective of underwater cultural heritage is needed in the U.S. It should be inclusive of all submerged archaeological sites from the shoreline out to the nation‘s 200-mile EEZ. Specific critical provisions of this blanket statute would include: 1) U.S. assertion of historic preservation

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

14

Mark Staniforth, James Hunter and Emily Jateff

interest in all submerged cultural heritage under its purview (including sunken U.S. sovereign vessels regardless of location—already attended to via SMCA), as well as title to abandoned UCH within the nation‘s 12-mile territorial sea and a contiguous zone out to 24 miles consistent with international law; 2) a permitting regime that regulates investigation of submerged archaeological sites in a manner that is environmentally and archaeologically sound; 3) an enforcement provision prohibiting unauthorized activities that detrimentally affect UCH and/or the surrounding marine environment; and 4) a provision declaring all submerged sites under U.S. jurisdiction exempt from the laws of salvage and finds. In terms of protecting UCH outside of its territorial waters (the 3-mile limit covered under ASA), the U.S. has not exhibited any evident interest in extending ASA to the nation‘s contiguous zone. This runs counter to the general duty imposed by UNCLOS that ―objects of an archaeological and historical nature found at sea‖ should be protected (Elia, 2000: 48). Currently, U.S. extraterritorial seas are essentially unregulated in terms of submerged cultural heritage; however, the federal government does exert jurisdiction over specific sites beyond the 3-mile limit via management of the National Oceanographic and Atmospheric Administration (NOAA) National Marine Sanctuaries Program. The Program was created in 1972 by the Marine Protection, Research, and Sanctuaries Act (MPRSA) and designates specific areas of the country‘s marine environment as National Marine Sanctuaries. In designating a Sanctuary, the U.S. Secretary of Commerce must consider ―the area‘s historical, cultural, archaeological, paleontological significance,‖ thereby expanding the scope of UCH (and its legal protection) beyond shipwreck sites (MPRSA, 1972). The nation‘s first designated Sanctuary was the wreck of the American Civil War ironclad warship USS Monitor, which, at 16 miles from the North Carolina coast, is located beyond the limits of the territorial sea and—at the time of designation—contiguous zone. Twelve Sanctuaries currently exist, all of which essentially contain UCH within their respective boundaries (Elia, 2000: 48). Under provisions outlined in 1992 amendments to Title III of MPRSA (known as the National Marine Sanctuaries Act), the law‘s jurisdiction was extended to the 200-mile EEZ, giving it the most extensive reach of any U.S. cultural heritage legislation (Hutt et al., 1999: 495). In addition to the National Marine Sanctuaries Program, the Minerals Management Service (MMS), an agency of the U.S. Department of the Interior, regulates numerous resource-related activities on the outer continental shelf. Because MMS is a federal agency, it is subject to federal laws and regulations (including the National Historic Preservation Act of 1966) that require assessment and mitigation of activities under its purview that may detrimentally affect significant—or potentially significant—cultural resources (Elia, 2000: 49). In 1993, the United States Department of the Navy (DoN) created an underwater archaeology program as a branch of the U.S. Naval Historical Center (now known as the Naval History and Heritage Command, or NHHC). The program was developed as a result of responsibilities mandated to the Navy under U.S. federal preservation laws, including the National Historic Preservation Act of 1966. Technological advances in scuba diving, remote sensing, and global positioning systems made wreck sites under the DoN‘s purview easier to locate and access by a variety of interest groups; this in turn raised the Navy‘s awareness of the imminent danger faced by these historic properties. DoN asserts custody of its submerged historic properties by the principle of sovereign immunity. Sovereign immunity is the ―immunity of publicly owned property from the

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

15

exercise of jurisdiction over it by any other government or private person or entity‖ (Roach, 1997: 398). In the case of U.S. Navy ship and aircraft wreck sites, sovereignty is not affected by the passage of time, nor whether the properties in question are located in U.S., foreign or international waters. Further, naval wrecks are not abandoned, but remain U.S. government property immune from the law of salvage until formal congressional action is taken to dispose of them. This is founded in the property clause of the U.S. Constitution, Articles 95 and 96 of UNCLOS, and historic principles of maritime law. As a consequence of their sovereign immune status, custody of Navy ship and aircraft wrecks did not transfer to individual states following adoption of ASA in 1988 (Pixa, 2004; Coble, 2002; Neyland, 1996). The American Civil War submarine H.L. Hunley and other naval vessels formerly in service of the Confederate States Navy represent a special category of shipwrecks entitled to sovereign immunity. These wrecks are now the property of the U.S. government based upon the principle that the United States, by right of conquest, assumed sovereignty over the property of the former Confederate States of America. The Administrator of the General Services Administration (GSA) assumes responsibility for Confederate naval shipwrecks and currently oversees these properties (Neyland, 1996). In some instances, however, GSA has authorized NHC to assume management responsibility for particularly significant shipwrecks under its jurisdiction, including H.L. Hunley (Hunter, 2007; Neyland, 1996). More recently, NHHC has been charged with management of shipwrecks from earlier conflicts, including vessels that were commissioned and/or captured by the American Continental Navy and Army (Hunter and Schmidt, 2003; Cohn and Kane, 2002). The Navy‘s recognition that it has jurisdiction over some of the nation‘s most significant historical and archaeological properties influenced creation of specific legislation that preserves the sovereign status of sunken United States military vessels and aircraft. On October 28, 2004 President George W. Bush signed the 2005 National Defense Authorization Act. Title XIV of the Act, generally referred to as the Sunken Military Craft Act (SMCA), stipulates the Navy‘s submerged cultural properties, and the remains of their crews, are to be protected from unauthorized disturbance. It codifies commonly understood principles of international law and existing case law, and confirms sunken U.S. military vessels and aircraft are Sovereign property (Pixa, 2004). SMCA provides for archaeological research permits and civil enforcement measures—including substantial fines—to prevent unauthorized disturbance. The international implications of the Act and Sovereign immunity will be addressed in the Discussion section of this chapter. Overall the United States has developed legislation that offers some protection to underwater cultural heritage within its waters, as well as sunken sovereign vessels and aircraft around the world. The U.S. also created the Titanic Memorial Act, is a signatory to the Titanic Agreement, and through NOAA has instituted guidelines for the wreck‘s protection and management (see below). Unfortunately all of the above are flawed in some capacity: ASA is limited in scope, SMCA will likely be difficult to adequately enforce, and Congress has not yet enacted legislation to enforce provisions of the Titanic Agreement and NOAA Guidelines. ASA is protective of certain categories of underwater cultural heritage, but is vulnerable to legal attacks in Admiralty Court(s) (RE: Brother Jonathan, Zych v. Unidentified, Wrecked and Abandoned Vessel, Columbus-America Discovery Group v. Atlantic Mutual Insurance Company). Varmer and Blanco (1999: 212) expect ASA to ―ultimately prevail‖ in protecting shipwrecks embedded in state lands—as well as other historic shipwrecks—but also note that years of litigation may ensue before this is realized.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

16

Mark Staniforth, James Hunter and Emily Jateff

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

DISCUSSION It is clear that some nations (like the U.S.) are unlikely to ratify UNESCO-CPUCH and others (perhaps Australia) may take some considerable time before they actually ratify. One option is for organizations, including professional societies, heritage organizations, government agencies and other groups around the world to endorse the ICOMOS International Charter on the Protection and Management of Underwater Cultural Heritage (1996) and the Annex to the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage as models for best management practice, and encourage the timely adoption of their Articles, Rules and Principles into the laws, policies, professional standards and guidelines of all programs involved in the management of underwater cultural heritage. International NGOs, like the World Archaeological Congress (WAC), Society for Historical Archaeology (SHA), Advisory Council on Underwater Archaeology (ACUA) and Global Coral Reef Alliance, as well as regional and national NGOs such as the North American Society for Oceanic History (NASOH), Council of American Maritime Museums (CAMM), Australasian Institute for Maritime Archaeology (AIMA) and others have all taken this step. Significantly, some state government agencies and government advisory bodies in the U.S. and Australia, such as the Massachusetts Board of Underwater Archaeological Resources (MBUAR), the New South Wales Heritage Council, and the Florida Public Archaeology Network (FPAN), have also done this. These cases have shown that when a nation or state has not ratified the Convention, organisations in that country can adopt the Annex to the Convention as guidelines for the practice of underwater archaeology and the preservation of UCH. What are some options for the smaller nations of Africa, Latin America, the Caribbean, and the Asia-Pacific region in terms of ratification of UNESCO-CPUCH and/or the enactment of national underwater cultural heritage legislation? One example comes from the Kingdom of Cambodia, which in 2007 became the 16th state party to ratify the Convention. Oversight of cultural heritage in Cambodia is subject to review by the Office of the Council of Ministers, and implementation by the Ministry of Culture and Fine Arts. Unfortunately, Cambodia does not have an underwater cultural heritage program in place at either the federal, state or university level, and does not employ maritime archaeologists (at present) within any management capacity. However, recent measures to improve Cambodian expertise in underwater cultural heritage have been enacted. In early 2009, the then Deputy Director of the Department of Archaeology and Prehistory, Ministry of Culture and Fine Arts and the Chief of Cultural Heritage, Department of Culture and Fine Arts, Battambang, attended the AusAID-funded ALA Fellowship Program in Underwater Cultural Heritage Management hosted by Flinders University‘s Maritime Archaeology Program (MAP) in Australia. Participation in this program provided the Cambodian fellows with experience in maritime archaeological theory and method and provided a platform to engage with maritime archaeologists and underwater cultural heritage managers throughout the Asia-Pacific Region, including those from Australia, Indonesia, Thailand, Sri Lanka and the Philippines (Staniforth, 2009). With the recent relocation of the Regional Field Training Centre in Maritime Archaeology from Galle in Sri Lanka to Thailand, the Kingdom of Cambodia will be well placed to receive additional professional training in maritime archaeology. Potential exists for

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

17

the creation of regional partnerships and bilateral agreements with other neighboring countries for the protection and management of UCH in Cambodian waters. The Kingdom of Cambodia has taken an excellent first step and with regional support could be elevated as an example of good practice in Underwater Cultural Heritage Management. Nevertheless, the implications of ratification of UNESCO-CPUCH immediately became an issue in February 2009 when Cambodia announced to the world that a 15th-16th century Chinese vessel in Koh Kong province (located in 2006) was being looted by fishermen and required immediate professional attention (Phnom Penh Post, 10 February 2009). The Cambodian government wished to excavate the vessel but lacked the finances, skills and expertise to do so, instead choosing to send out a worldwide appeal. This appeal was answered—by both archaeologists and treasure salvors. As this book goes to press, a governmental decision about how to proceed with this issue has yet to be made. Regardless of whether a nation will or will not ratify the UNESCO Convention, some issues such as sovereign immunity will continue to emerge in an international context. Bilateral (government-to-government) agreements are one mechanism to deal with such issues and the United States, for one, has successfully negotiated and resolved sovereignty issues between its state and national government interests and foreign governments. Examples include the Spanish vessels Juno and La Galga, both of which were lost off the Virginia coast and reportedly discovered by salvage firm Sea Hunt, Inc. in the late 1990s. Although Sea Hunt claimed a salvage award against both shipwrecks, the U.S. District Court in the Eastern District of Virginia ruled both sovereign craft that had not been abandoned by the Kingdom of Spain and effectively recognised Spain‘s sovereign immunity over these vessels. Further, the Court refused Sea Hunt a salvage award on the grounds that Spain had expressly rejected salvage as a recovery option. Procedurally, the Juno and La Galga case is unique in that the U.S. Justice Department moved to represent Spain pursuant to the 1902 Treaty of Friendship between the two countries (the Court ultimately prevented the motion) (Pixa, 2004: 8-9). The U.S. has also negotiated sovereignty agreements with France over the wrecks of the Confederate commerce raider CSS Alabama and late-17th century French exploration vessel La Belle. In the former case, the U.S. government claimed sovereignty over Alabama as the Confederacy‘s successor sovereign, despite the wreck‘s location in French territorial waters. Ultimately, France and the U.S. developed a mutually beneficial arrangement that allowed research institutions from both nations to conduct both independent and collaborative research at the wreck site and exhibit recovered material. A similar bilateral agreement recognized the French government‘s title to La Belle and its associated cultural material, but allowed governmental, academic and research institutions in the State of Texas—where the wreck was located—to excavate the site and recover, conserve and exhibit its artifacts within the U.S. (Pixa, 2004: 10-11). On August 26, 2009 Ambassador David A. Balton (U.S. Deputy Assistant Secretary of State for Oceans and Fisheries) and Vice Admiral James W. Houck (Judge Advocate General of the U.S. Navy) both invoked the Sunken Military Craft Act in statements regarding the U.S. government‘s position towards the ongoing legal dispute between the Kingdom of Spain and Odyssey Marine Exploration, Inc. In their respective statements, both Ambassador Balton and Vice Admiral Houck concluded sunken Spanish warships and other State vessels that have not been abandoned be granted the same Sovereign immunity as sunken U.S. military craft (Declaration of Ambassador David A. Balton, 2009; Statement of Interest of United States Department of the Navy, 2009).

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

18

Mark Staniforth, James Hunter and Emily Jateff

In 1985 the wreckage of RMS Titanic was located off the coast of Newfoundland by a joint French/U.S. expedition. Shortly after the wreck‘s discovery, the expedition‘s American leader, Dr. Robert Ballard, petitioned the U.S. Congress to enact legislation for its protection. Congressional response was to direct the U.S. Department of State (DoS) to negotiate an international agreement with the United Kingdom, Canada, France and other interested nations designating Titanic a maritime memorial. The resulting legislation, the RMS Titanic Maritime Memorial Act of 1986 (Titanic Memorial Act), was intended to protect the wreck site from misguided salvage and looting activities. The move was prescient, as a US-based salvage firm operating in conjunction with Titanic‘s French co-discoverers, the French Ocean Institute (IFREMER), visited the wreck the following year and began recovering artifacts from its debris field (Varmer, 2006: 14; Whitfield, 1997: 422). The Titanic Memorial Act tasked NOAA to enter into consultative discussions with partner nations listed in the international agreement to develop guidelines for exploration, research, and—if appropriate—salvage activities at the Titanic wreck site. Several groups share an interest in the site (Varmer, 2006: 15). Representatives of these parties were consulted during development and preparation of NOAA‘s guidelines and the international agreement. The latter document, The Final Minutes of the International Agreement Concerning the Shipwrecked Vessel R.M.S. Titanic (Titanic Agreement) was signed in 1999. As with ASA, the Titanic Agreement was challenged by salvors in court, in this instance in an unsuccessful bid to prevent its ratification. The U.K. and U.S. signed the Titanic Agreement in 2003 and 2004, respectively. In 2001, NOAA published Guidelines on the Research, Exploration and Salvage of RMS Titanic. These were based on the International Council of Monuments and Sites (ICOMS) Charter, as well as standards and regulations outlined by the NPS Federal Archaeology Program. Both the NOAA guidelines and Rules annexed to the Titanic Agreement are unique from other U.S. underwater cultural heritage legislation in that they have essentially adopted the Rules annexed to UNESCO-CPUCH and promote a policy of in situ preservation as the first site management option. In the event a signatory to the Titanic Agreement determines artefact recovery is an appropriate course of action, all recovered material is conserved and curated in accordance with the Rules, and kept together as an intact project collection. Further, each signatory is expected to regulate the actions of its nationals to minimize disturbance to the wreck site, and ensure all artifact recovery is conducted in accordance with the Rules (NOAA Guidelines, 2001). On July 24, 2007, the Department of State submitted proposed legislation to Congress to implement the Titanic Agreement. Currently, the U.K. is the only signatory of the Titanic Agreement that has enacted legislation to bring it into force; in the United States, neither NOAA nor any other federal agency has the authority to enforce the Agreement or NOAA Guidelines under the present Act. Until the international agreement is implemented as U.S. law, the nation‘s Admiralty Courts will likely continue to manage commercial recovery of cultural material from Titanic under federal laws of salvage and finds, although both the Titanic Agreement and NOAA Guidelines have been cited by these courts when dictating management stipulations for the wreck‘s artefact collection (Varmer, 2006: 16).

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

International Approaches to Underwater Cultural Heritage

19

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

CONCLUSION Ratification of the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage will provide great challenges to the way in which underwater cultural heritage is protected in the future. Internationally, the UNESCO Convention now applies to 26 state parties within all regions of the world. By providing a framework of standards of practice and encouraging nations to collaborate and co-operate in underwater cultural heritage protection, the UNESCO-CPUCH will fundamentally change the ways in which underwater cultural heritage is protected in many countries of the world. It should provide both a measure of consistency to international UCH legislation and actively reduce illegal salvage of materials by instituting a system of checks and balances. Nevertheless such protection is only available to state parties and the Convention may have a limited impact on the activities of non-signatory nations such as Australia and the United States (LaMotte, 2002). The active Spanish approach to underwater cultural heritage management in both international and domestic waters is to be admired and hopefully adopted by other coastal states. Australia appears to be actively moving towards ratification. As previously stated, the review of the Historic Shipwrecks Act and discussion paper regarding Australia‘s possible ratification of UNESCO-CPUCH are in process; with the approval of the current government. Australia‘s active maritime community is in favour of ratification and amendments to the existing legislation appear imminent. Although it would seem to be in the United States‘ best interests to not only support, but also take the lead in adopting UNESCO-CPUCH, there is little chance it will ever be a signatory to the Convention. The U.S. expresses general support for ―the concept of‖ an international agreement for protecting UCH, but took issue with several specific components of the Draft Convention and suggested alternatives to many of its articles (Elia, 2000: 50; U.S. Delegation, 1999; Strati, 1999; U.S. Delegation, 1998). A ―multiple-use‖ approach advocated by the U.S. is potentially troublesome, as it remains unclear whether the delegation considers commercial salvage and treasure hunting ―appropriate recovery‖ of UCH. The U.S. delegation proposed that Article 3 of the Draft Convention be altered to read, ―State Parties shall facilitate multiple use of underwater cultural heritage, including research education, public and private [emphasis added] access and, where appropriate, recovery, consistent with this Convention‖ (Elia, 2000: 52; U.S. Delegation, 1999; Strati, 1999: 24; U.S. Delegation, 1998). It appears that the U.S. delegation would ultimately support commercial recovery of shipwreck material as an appropriate option, since it suggested during deliberations on the Draft Convention that the salvage of artifacts from RMS Titanic would potentially constitute an appropriate recovery of UCH (U.S. Delegation, 1998). Incredibly, this statement contradicts the view of the U.S. Congress, which urged that ―no person should conduct any such research or exploration activity which would physically alter, disturb, or salvage the RMS Titanic‖ pending an international agreement to manage the site (Titanic Act, 1986).

REFERENCES Abandoned Shipwreck Act, (1987). Public Law 100-298, 43 United States Code 2101-2106 (April 28, 1988). US Law.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

20

Mark Staniforth, James Hunter and Emily Jateff

Álvarez, E. Z. (1999). Spain. In S. Dromgoole, (Ed.), Legal Protection of the Underwater Cultural Heritage: National and International Perspectives, (143-154). London, UK: Kluwer Law International. Anderson, R., Philippou. C. & Harvey. P. (2006). Innovative Approaches in Underwater Cultural Heritage Management. In M. Staniforth. & Nash, M. (Eds.), Maritime Archaeology: Australian Approaches, (137-150). New York, NY: Springer/Kluwer/Plenum Press. Aubry, M. C. (1992). Federal and State Shipwreck Management in the United States of America. The Bulletin of the Australian Institute for Maritime Archaeology, 16(1), 19-22. Aubry, M. C. (1997). Abandoned Shipwreck Act (US). In J.P. Delgado (Ed.), Encyclopedia of Underwater and Maritime Archaeology, (16-17). New Haven, CT: Yale University Press. Australia ICOMOS. (1999). http://www.aicomos.com/ Beard, D. (1989). HMS De Braak: A Treasure Debunked, a Treasure Revealed. Unpublished MA thesis, Greenville, NC: East Carolina University. A. Bowens, (Ed.). (2009). Underwater Archaeology: The NAS Guide to Principles and Practice (2nd edition). Portsmouth, UK: Nautical Archaeology Society. Brown, E. P. (1996). Protection of the Underwater Cultural Heritage. Draft Principles and Guidelines for implementation of Article 303 of the United Nations Convention on the Law of the Sea, 1982, Marine Policy, 20(4), 325. G. Camarda, & T. Scovazzi, (Eds.), (2002). The Protection of the Underwater Cultural Heritage: Legal Aspects. Milan, Italy: Giuffrè. Carducci, G. (2006). The UNESCO Convention 2001: A Crucial Compromise on Salvage Law and the Law of Finds. In L.V. Prott, (Ed.), Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention of the Protection of the Underwater Cultural Heritage (pp.27-31). Leicester, UK: Institute of Art and Law. Cassidy, W. (1991). Historic Shipwrecks and Blanket Declaration. The Bulletin of the Australian Institute for Maritime Archaeology, 15(2), 4-6. Coble, W. (2002). Management of Historic Ships and Aircraft Sites. Cultural Resources Management, 25(2), 34-36. Cohn, A. & Kane, A. (2002). Spitfire Management Plan: Phase One Draft Report. Basin Harbor, VT: Lake Champlain Maritime Museum. Cooper, M. A., Firth, A., Carman, J. & Wheatley, D. (1995). Managing Archaeology. London, UK: Routledge. Croome, A. (1992). The United States‘ Abandoned Shipwreck Act Goes into Action: A Report. International Journal of Nautical Archaeology, 21(1), 39-53. Declaration of Ambassador David A. Balton (August 26, 2009). Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, and The Kingdom of Spain, The Republic of Peru, et. al. Case No. 8:07-CV-614-SDM-MAP. J. P. Delgado, (Ed.) (1997). British Museum Encyclopedia of Underwater and Maritime Archaeology. London, UK: British Museum Press. S. Dromgoole, (Ed.) (1999). Legal Protection of the Underwater Cultural Heritage: National and International Perspectives. London, UK: Kluwer Law International. Dromgoole, S. (2006). Legal Protection for the Underwater Cultural Heritage: The Immediate Challenge and Methods of Response. In K., Fu, J. N., Moore, M. H. Nordquist, & M. H.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

21

(Eds.), Recent Developments in the Law of the Sea and China, (456-482) The Netherlands: Martinus Nijhoff Publishers. Elia, R. J. (2000). US Protection of Underwater Cultural Heritage Beyond the Territorial Sea: Problems and Prospects. International Journal of Nautical Archaeology, 29(1), 43-56. Espósito, C. & Fraile, C. (2004). The UNESCO Convention on Underwater Cultural Heritage: A Spanish View. In D. D. Caron, & Scheiber, H. N. (Eds.), Bringing New Law to Ocean Waters, (201-223). The Netherlands: Koninklijke Brill N.V. Fernández, J. G. (1989). The New Spanish Archaeological Heritage Legislation. In H. F. Cleere, (Ed.) Archaeological Heritage Management in the Modern World, (182-193). Oxford, UK: University Printing House. Fletcher-Tomenius, P. & Forrest, C. (2000). Historic Wrecks in International Waters: Conflict or Consensus? Marine Policy, 24, 1-10. Florida Dept. of State v. Treasure Salvors, Inc. 458 U.S. 670, 102 S, Cr. 3304.73 L Ed. 2d 1057, 1983 AMC 144 (1982). Garabello, R. (2003). The Negotiating History and the Provisions of the Convention on the Protection of the Underwater Cultural Heritage. In R. Garabello, & T. Scovazzi, (Eds.), The Protection of the Underwater Cultural Heritage (89-192). The Netherlands: Koninklijke Brill N.V. Green, J. N. (1978). The Western Australian Maritime Archaeology Department and the Dutch Wreck Programme. In J. N. Green, (Ed.), Papers from the First Southern Hemisphere Conference on Maritime Archaeology, (68-72). Melbourne, Australia: Oceans Society. Green, J. N. (1995). Management of Maritime Archaeology Under Australian Legislation. The Bulletin of the Australian Institute for Maritime Archaeology, 19(2), 33-44. Gurney, K. (1994). Recent Changes to Historic Shipwrecks Legislation in Victoria: Something Borrowed and Something New. The Bulletin of the Australian Institute for Maritime Archaeology, 18(1), 47-50. Henderson, G. (1978). Developing a Colonial Wrecks Programme in Western Australia. In J. N. Green, (Ed.), Papers from the First Southern Hemisphere Conference on Maritime Archaeology, (69-72). Melbourne, Australia: Oceans Society. Hosty, K. & Stuart, I. (1994). Maritime Archaeology Over the Last Twenty Years. Australian Archaeology, 39, 9-19. Hunter, J. W. & Schmidt, S. (2003). The Penobscot Expedition Archaeological Project: Field Investigations 2000 and 2001 (Final Report). Washington, DC: Naval Historical Centre Underwater Archaeology Branch. Hunter, J. W. (2007). People Power This Submarine: H.L. Hunley Within the Context of Public Archaeology. In J.H. Jameson & Scott-Ireton, D.A. (Eds.), Out of the Blue: Public Interpretation of Maritime Cultural Resources, (204-222). New York, NY: Springer Press. Hutchinson, G. (1996). Threats to Underwater Cultural Heritage: The Problems of Unprotected Archaeological and Historical Sites, Wrecks and Objects Found at Sea. Marine Policy, 20(4), 287-90. Hutt, S., Blanco, C. & Varmer, O. (1999). Heritage Resources Law: Protecting the Archaeological and Cultural Environment. New York, NY: National Trust for Historic Preservation.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

22

Mark Staniforth, James Hunter and Emily Jateff

ICOMOS Charter for the Protection and Management of Underwater Cultural Heritage (1996). http://www.international.icomos.org/charters/underwater_e.htm Jeffery, W. F. (1987). A Cultural Resource Management Programme for Shipwrecks in South Australia. The Bulletin of the Australian Institute for Maritime Archaeology, 11(1), 3956. Jeffery, W. F. (1999). Australia. In S. Dromgoole, (Ed.), Legal Protection of the Underwater Cultural Heritage: National and International Perspectives) (1-17). London, UK: Kluwer Law International. Jeffery, W. F. (2006). Historic Shipwrecks Legislation. In M. Staniforth. & M. Nash. (Eds.), Maritime Archaeology: Australian Approaches, (123-135). New York, NY: Springer/Kluwer/Plenum Press. Johnstone, P. F. (1993). Treasure Salvage, Archaeological Ethics and Maritime Museums. International Journal of Nautical Archaeology, 22, 53. Koschtial, U. (2008). The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage: Advantages and Challenges. Museum International, 240, 63-69. LaMotte, R. (2002). Introductory Note to UNESCO: Convention on the Protection of the Underwater Cultural Heritage. International Legal Materials, 41, 37-39. Lund, C. (2006). The Making of the UNESCO Convention 2001. In L. V. Prott, (Ed.), Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention of the Protection of the Underwater Cultural Heritage, (14-19). Leicester, UK: Institute of Art and Law. Lee, K. G. (2006). An Inquiry into the Compatibility of the UNESCO Convention with UNCLOS 1982. In L. V. Prott, (Ed.), Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention of the Protection of the Underwater Cultural Heritage (20-26). Leicester, UK: Institute of Art and Law. Lenihan, D., Askins, A. & Russell, M. (1997). United States of America. In J. P. Delgado (Ed.), Encyclopedia of Underwater and Maritime Archaeology (442-450). New Haven, CT: Yale University Press. Maarlevelde, T. J. (2008). How and Why Will Underwater Cultural Heritage Benefit from the 2001 Convention? Museum International, 240, 50-62. Manders, M. (2008). In Situ Preservation: ‗The Preferred Option‘. Museum International, 240, 31-41. McCarthy, M. (1981). The Underwater Display Case. The Bulletin of the Australian Institute for Maritime Archaeology, 5, 42-52. McCarthy, M. (1998). Australian Maritime Archaeology: Changes, Their Antecedents and the Path Ahead. Australian Archaeology, 47, 33-38. McCarthy, M. (2003). The Holistic Approach to the Maritime Heritage: Western Australia Case Study. The Bulletin of the Australian Institute for Maritime Archaeology, 27, 25-34. McCarthy, M. (2006). Maritime Archaeology in Australasia: Reviews and Overviews. In M. Staniforth, & M. Nash, (Eds.), Maritime Archaeology: Australian Approaches, (1-11). New York, NY: Springer/Kluwer/Plenum Press. Nash, M. (2003). The Tasmanian Maritime Heritage Program. The Bulletin of the Australian Institute for Maritime Archaeology, 27, 43-58. National Marine Sanctuaries Act, (1972). US Law. Negueruela, I. (1996). First Course on the Protection of Our Underwater Heritage. Cuadernos de Arqueologiu Muritirnu, 239-243.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Approaches to Underwater Cultural Heritage

23

Negueruela, I. (2000). Managing the Maritime Heritage: The National Maritime Archaeological Museum and National Centre for Underwater Research, Cartagena, Spain. International Journal of Nautical Archaeology, 29(2), 179-198. Neyland, R. S. (1996). Sovereign Immunity and the Management of United States Naval Shipwrecks. In S. R. James & C. Stanley, (Eds.), Underwater Archaeology Cincinnati, OH: Society for Historical Archaeology. Nutley, D. (1987). Maritime Heritage Protection: Education as the Long Arm of the Law. The Bulletin of the Australian Institute for Maritime Archaeology, 11(1), 29-33. Nutley, D. (1996). Underwater Cultural Heritage Management. In L. Smith, & A. Clarke, (Eds.), Tempus: Issues in Management Archaeology, 5, 99-108. Nutley, D. (1998). Ten Years of Shipwreck Access and Management in New South Wales. The Bulletin of the Australian Institute for Maritime Archaeology, 22, 115-118. Nutley, D. (2003). Benefits of a Formal Understanding Between the NSW Marine Parks Authority and the NSW Heritage Office. The Bulletin of the Australian Institute for Maritime Archaeology, 27, 71-76. Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, No. 8:07-CV-00614SDM-MAP (M.D. Fla. May 8, 2008), http://docs.justia.com/cases/federal/districtcourts/florida/flmdce/8:2007cv00614/197978/107/. Odyssey Marine Exploration, Inc. (2007). A Colonial Period Shipwreck Site, Code Name ‗Black Swan‘, at an Undisclosed Location in the Atlantic Ocean‘. Press Release, May 18, 2007. http://www.shipwreck.net/gsarticle08.php. O‘Keefe, P. J. (2002). Shipwrecked Heritage: A Commentary on the UNESCO Convention on Underwater Cultural Heritage. Leicester, UK: Institute of Art and Law. Philippou, C. & Staniforth, M. (2003). Maritime Heritage Trails in Australia: An Overview and Critique of the Interpretive Programs. In J. D. Spirek, & D. A. Scott-Ireton, (Eds.), Submerged Cultural Resource Management, (135-141). New York, NY: Springer/Kluwer/Plenum Press. Phnom Penh Post (2009). Cambodia seeks help to bring up ancient shipwreck. Phnom Penh Post, 10 February 2009. http://khmernz.blogspot.com/2009/02/cambodia-seeks-help-tobring-up-ancient.html. Pixa, R. R. (2004). In Defense of Perpetual Title to Sovereign Wrecks. U.S. Naval History and Heritage Command website http://www.history.navy.mil/branches/org12-7m.htm; initial release date, 9 December 2004. Prott, L. V. & O‘Keefe, P. J. (1984). Law and the Cultural Heritage, Volume: Discovery and Excavation. Oxford, UK: Professional Books Limited. Prott, L. V. & O‘Keefe, P. J. (1989). Law and the Cultural Heritage, Volume 3: Movement. London and Edinburgh, UK: Butterworths. RMS Titanic Maritime Memorial Act of 1986. Public Law 99-513 (October 21, 1986), 100 Statute 2082, 16 United States Code s. 450rr-450rr-6 (2005). Roach, J. A. (1997). Sovereign Immunity. In J.P. Delgado (Ed.), Encyclopedia of Underwater and Maritime Archaeology (398-399). New Haven, CT: Yale University Press. Shomette, D. (1993). The Hunt for HMS De Braak: Legend and Legacy. Durham, NC: Carolina Academic Press. Smith, T. (2003). Shipwreck Trails: Public Ownership of a Unique Resource? In J. D. Spirek, & D. A. Scott-Ireton, (Eds.), Submerged Cultural Resource Management, (121-133). New York, NY: Springer/Kluwer/Plenum Press.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

24

Mark Staniforth, James Hunter and Emily Jateff

Smith, T. (2008). Managing an Australian midget: The Imperial Japanese Navy Type A submarine M24 at Sydney. The Bulletin of the Australian Institute for Maritime Archaeology, 32, 79-89. Spanish Historical Heritage Law No. 16 of 1985. Law No. 289/93 of 21 August 1995. Spanish Law. Staniforth, M. (1993). Maritime History, Archaeology and Museums. Bermuda Journal of Archaeology and Maritime History, 5, 215-228. Staniforth, M. (2000). A Future for Maritime Archaeology? Australian Archaeology, 50, 9093. Staniforth, M. (2007a). Australian Approaches to Defining and Quantifying Underwater Cultural Heritage: Learning from Our Mistakes. In J. Stachell, & P. Palma, (Eds.), Proceedings of the 1st IFA-MAG Conference. Portsmouth, UK: Institute of Field Archaeologists - Maritime Affairs Group. Staniforth, M. (2007b). Archaeology. In Encyclopedia of Maritime History Volume 1, (124129). New York, NY: Oxford University Press. Staniforth, M. (2009). Research in Underwater Archaeology: Some Challenges and Approaches for the Future. In B. Merkel, & M. Schipek. (Eds.), Proceedings of the International Workshop 2009: Research in Shallow Marine and Fresh Water Systems (106-110). Freiberg, Germany: Technische Universitat Bergakademie Freiberg. Statement of Interest of United States Department of the Navy, (2009). Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, and The Kingdom of Spain, The Republic of Peru, et. al. Case No. 8:07-CV-614-SDM-MAP. August 26, 2009. Stemm, G. (2000). The Claims of Spain: Death Knell for Shipwreck Exploration? Underwater Magazine (Nov. 2000), http://www.shipweck.net/gsarticle08.html. Strachan, S. (1995). Interpreting Maritime Heritage: Australian Historic Shipwreck Trails. Historic Environment, 11(4), 26-36. Strati, A. (1999). Draft Convention on the Protection of Underwater Cultural Heritage: A Commentary Prepared for UNESCO. Document CLT-99/WS/8. Paris, France: UNESCO. Sunken Military Craft Act. (2004). (Title XIV, Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005). Public Law 108-375 (October 28, 2004), House of Representatives Bill 4200 1401-1408. US Law. United Nations Convention on the Law of the Sea. (1994). UNESCO Convention on the Protection of the Underwater Cultural Heritage. (2001). http://portal.unesco.org/en/ev.php-URL_ID=13520&URL_DO=DO_TOPIC&URL_ SECTION =201.html). UNESCO Information Kit for the UNESCO Convention on the Protection of the Underwater Cultural Heritage. (2001). http://unesdoc.unesco.org/images U.S. Delegation. (1998). Information paper submitted by the United States of America. Uses and Interests in Underwater Cultural Heritage that are Compatible with the Convention (as presented orally at the Meeting of Government Experts, Paris, 29 June-2 July, 1998). U.S. Delegation, (1999). Comments of the United States of America on UNESCO Draft Convention on the Protection of the Underwater Cultural Heritage (CLT96/CONF.202/5, Rev. April 1999). U.S. National Oceanographic and Atmospheric Administration (NOAA). (2001). Guidelines for the Research, Exploration and Salvage of RMS Titanic. 66 Federal Register, 18905, 18908-09 (April 12, 2001).

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

International Approaches to Underwater Cultural Heritage

25

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Van Tilburg, H. (2006). Key Principles of Marine Archaeology: The Annex. In L. V. Prott, (Ed.), Finishing the Interrupted Voyage: Papers of the UNESCO Asia-Pacific Workshop on the 2001 Convention of the Protection of the Underwater Cultural Heritage, (121125). Leicester, UK: Institute of Art and Law. Varmer, O. (2006). RMS Titanic. In R. Grenier., D. Nutley., & I. Cochran. (Eds.), Underwater Cultural Heritage at Risk: Managing Natural and Human Impacts (14-16). Paris, France: UNESCO. Varmer, O. & C. Blanco, C. (1999). United States of America. In S. Dromgoole, (Ed.), Legal Protection of the Underwater Cultural Heritage: National and International Perspectives) (205-221). London, UK: Kluwer Law International. Verified Claim of the Kingdom of Spain at 1-2, Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, No. 8:07-CIV-614-T-24MAP (M.D. Fla. May 31, 2007),http://docs.justia.com/cases/federal/districtcourts/florida/flmdce/8:2007cv00614/19 7978/13/. Wade, N. (1981). Galleon Yields Gold, Silver, and Archaeology. Science, 212(26), 14861487. White, M. (2001). International Decisions, Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel or Vessels, Case Note. American Journal of International Law, 95(3), 678-684. Whitfield, S. (1997). Titanic Litigation. In J. P. Delgado, (Ed.), Encyclopedia of Underwater and Maritime Archaeology (421-423). New Haven, CT: Yale University Press. Zamora, T. V. (2008). The Impact of Commercial Exploitation on the Preservation of Underwater Cultural Heritage. Museum International, 240, 18-30.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 2

THINGS, INC.: A CASE FOR IN SITU APPLICATION Jerome Lynn Hall ―How many things have to happen to you, before something occurs to you?‖ – American poet Robert Frost

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ABSTRACT In January 2009, the United Nations Educational Scientific and Cultural Organization‘s (UNESCO) Convention on the Protection of the Underwater Cultural Heritage entered into force with the ratification of its twentieth instrument. Resultantly, State signatories to the document are now able to impose regulations prohibiting – among other things – commercial exploitation of cultural heritage for trade or speculation and the irretrievable dispersal of such items. The fundamental principle and underlying tenor of the Convention, as stated in its first Article, is that underwater cultural heritage (UCH) is best protected through in situ preservation. Many, however, including popular and pseudo-scientific media and their subscribers, fail to acknowledge this preservation strategy as a coherent managerial approach to the safeguarding, understanding, and enjoyment of UCH. Swayed by ―media-ready‖ public relations campaigns of for-profit ―salvage companies‖ (treasure hunters), they embrace a limited definition of archaeology centered almost exclusively in selective excavation techniques. Consequently – and because these endeavors are driven largely by ―product‖oriented business plans – in situ preservation has no place in the corporate profit prospectus. Though the precepts and procedures of archaeology are abundantly clear (design formulation, implementation, data collection, processing and conservation, analyses, interpretation, and publication), archaeologists must do more to illumine media cohorts and their public devotees that the discipline is defined by and ―bounded‖ in stipulated actions: inter alia, competence of researchers, professional treatment of material culture, and the ethical consideration of people(s) in whose territories cultural materials reside, belong, or originate. Only when the public appreciates archaeology as a process framed within prescribed ethical behaviors will they see treasure hunting for what it is: an industry of personal enrichment and conspicuous consumption at the expense of the public good.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

28

Jerome Lynn Hall How we view ―things‖ is an overwhelmingly complex issue – deeply cultural and profoundly consequential. In situ preservation, UNESCO‘s preferred first option and most practical approach to UCH, is a notion recognizing that sometimes, the greatest impact we may have on the future of our collective cultural histories is to ensure that we have little-to-no impact at all.

INTRODUCTION

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In an Associated Press story appearing in 2007, Academy award-winning actor, director, and film maker Sean Penn lamented the theft of a pair of boots that sat undisturbed for a decade and a half in an abandoned bus outside the Denali National Park and Preserve in Alaska.1 The vehicle and its contents had become a shrine of sorts to Christopher McCandless, a young, idealistic, and ingenuous outdoorsman who starved to death inside the bus in 1992. McCandless‘s storied restlessness and disturbing naiveté were brought to light in John Krakauer‘s 1996 book, Into the Wild,2 a tale so vexing, so replete with whimsical contradictions, that it eventually captured Penn‘s directorial eye. Equipped with little more than his fervent and serial rejection of materialism, a freshly-graduated McCandless embarked on a journey of youthful self-absorption and discovery, only to find himself staring into the void of an unforgiving Alaskan wilderness. Shortly before the release of the story‘s film version, Penn and Krakauer returned to the abandoned bus to find that McCandless‘s boots had been exchanged for a pair in better condition by someone who, clearly, was not upgrading their foot gear. ―I can‘t help but think it was related to some of the imminent discussion about the movie coming, and somebody hungering to have an eBay item,‖ noted Penn.

IN SITU PRESERVATION: A PRACTICAL OPTION? That McCandless‘s boots remained untouched for so many years is a testimony to preservation ―in situ,‖ a Latin term referring to the discovery of something undisturbed – literally ―in the place‖– and a strategy touted by many as an effective means of safeguarding resources. That someone, namely Penn, would find the removal of the boots so reprehensible is undoubtedly as much about the denial of public access and a now-interrupted story as it is about commercial exploitation and personal greed. In January 2009, the United Nations Educational Scientific and Cultural Organization‘s (UNESCO) Convention on the Protection of the Underwater Cultural Heritage (UCH) entered into force with the ratification of its twentieth instrument. As a result, State signatories to the 1

Germain, D. 2007. Sean Penn Dismayed by ‗Wild‘ Discovery. Associated Press, Toronto, Canada. Posted 20 September. See AOL News at http://news.aol.com/enterntainment/story/_a/sean-penn-dismayed-bywild-discovery/n2007. 2 Krakauer, J. 1996. Into the Wild. Villard. New York. This volume is the expansion of an earlier article written for Outside magazine (January 1990) titled ―Death of an Innocent: How Christopher McCandless Lost His Way in the Wilds.‖

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

29

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

document are now able to enforce regulations prohibiting – among other things – commercial exploitation of cultural heritage for trade or speculation and the irretrievable dispersal of such items.3 The fundamental principle and underlying tenor of the Convention as stated in its first Article is that UCH – generally regarded as shipwrecks, architectural ruins, and traces of human material culture found on the seabed – is best protected by in situ preservation. Such measure is not novel to the Convention, as it was articulated previously in articles 4 and 5 of the Valetta Treaty of 1992,4 as well as Article 1 of the Charter on the Protection and Management of Underwater Cultural Heritage by the Conseil International des Monuments et des Sites (International Counsel on Monuments and Sites, or ICOMOS).5 In its Article of Fundamental Principles, the latter declares that ―the preservation of underwater cultural heritage in situ should be considered as a first option.‖ Accordingly, the Convention recognizes and expands this principle when it states that in situ preservation ―must be considered as the first and preferred option [emphasis mine] before allowing or engaging in any activities‖ involving UCH.6 In light of such an alternative, practitioners dedicated to the protection, interpretation, and public access of UCH are faced with numerous case-dependent challenges: is this ―first and preferred option‖ the best strategy? If so, when and under what circumstances should it be applied? What are inherent or potential public benefits and hazards? How will cost, management, conservation, and monitoring concerns promote or inhibit interpretive or public access issues? With these questions considered, in situ preservation is selectively recognized internationally as a practicable alternative to archaeological excavation. Interestingly, even when deemed the preferred option, there is no ―universal‖ approach, as variable management schemes deal with issues of dynamic environmental factors, resource stabilization, and degree and duration of public access.

3

4

5

6

The Convention comprises 35 Articles and 36 Annexed Rules. It entered into force on 2 January 2009 in accordance with its own Article 27. As of this writing, 26 States parties have deposited their instruments of ratification, acceptance, approval, or accession, including Panama (20 May 2003), Bulgaria (6 October 2003), Croatia (1 December 2004), Spain (6 June 2005), Libyan Arab Jamahiriya (23 June 2005), Nigeria (21 October 2005), Lithuania (12 June 2006), Mexico (5 July 2006), Paraguay (7 September 2006), Portugal (21 September 2006), Ecuador (1 December 2006), Ukraine (27 December 2006), Lebanon (8 January 2007), Saint Lucia (1 February 2007), Romania (31 July 2007), Cambodia (24 November 2007), Cuba (26 May 2008), Montenegro (18 July 2008), Slovenia (18 September 2008), Barbados (2 October 2008), Grenada (15 January 2009), Tunisia (15 January 2009), Slovakia (11 March 2009), Albania (19 March 2009), Bosnia and Herzegovina (22 April 2009), and the Islamic Republic of Iran (16 June 2009). Article 4:ii of the Valetta Treaty of 1992 (also known as the Malta Treaty of 1992) states that ―each Party undertakes to implement measures for the physical protection of the archaeological heritage, making provision, as circumstances demand, for the conservation and maintenance of the archaeological heritage, preferably in situ.‖ Article 5:vii asserts that ―each Party undertakes to make provision, when elements of the archaeological heritage have been found during development work, for their conservation in situ when feasible.‖ This was ratified by the 11th ICOMOS General Assembly in Sofia, Bulgaria in October 1996. Article 1 further suggests public access, non-destructive techniques, non-intrusive applications, adequate documentation, and the avoidance of unnecessary disturbance of or impact on UCH. See http://portal.unesco.org/culture/en/ev.php-URL_ID=36031&URL_DO=DOPRINTPAGE& URLSECTION =201.html.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

30

Jerome Lynn Hall

Before examining several of many successful applications of in situ preservation, it is helpful to explore when this option is appropriate for UCH and when it is not, why it is preferred, and advantages of its application.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

When is it Applied? In situ preservation is preferred when resources are protected – or are in need of protection - and excavation, conservation, and display prove cost prohibitive. Depending on location, depth, and environmental conditions, extracting UCH is an arduous, timeconsuming process that poses potential hazard to both personnel and resources. Recovered objects must undergo extensive conservation, an often lengthy and expensive procedure which carries an appreciable degree of risk. In many if not most instances this may be avoided by leaving material culture in its depositional place. It is important to note that in situ preservation is not a decision to do nothing. Even when considered the most economical method of safeguarding heritage, on-site conservation and subsequent monitoring are consumptive of time, expertise, and finances; occasionally exceedingly so. Likewise, educational priorities influence application. Consider the European Community Culture 2000 project, ―Monitoring, Safeguarding and Visualizing North-European Shipwreck Sites (MoSS),‖ 7 where in situ preservation has been selected as the appropriate medium through which to teach Europeans about their UCH. Four shipwreck sites, spanning seven centuries and located in a variety of underwater environments in Germany, The Netherlands, Finland, and Sweden, emphasize the ―diversity of intercultural relationships throughout a long period of European history‖8 and have become catalysts for stimulating community participation in resource protection. Though declared a desired first option by the Convention, such a conservative and noninvasive approach may not be feasible in every instance. Therefore, it is important to

7

Three themes are evident in the program title. Objectives include (a) research on wreck deterioration so that better monitoring methods may be implemented; (2) developing shipwreck protection models so that public access may be facilitated; and (3) the visualization of these resources through multimedia. Coordination of the EU project is through The Maritime Museum of Finland, with participants: The Mary Rose Archaeological Services Ltd. (Great Britain), The National Service for Archaeological Heritage: Netherlands Institute for Ship and Underwater Archaeology (ROB/NISA), National Museum of Denmark/Centre for Maritime Archaeology, The Department for Preservation of Archaeological Sites and Monuments/Archaeological State Museum of Mecklenburg-Vorpommern (Germany), and Sweden‘s Södertörns högskola (University college). For more information on the EU project, see Palma, P. 2005. Monitoring Shipwreck Sites. International Journal of Nautical Archaeology. Volume 34, Issue 2, pages 323-331. See also http://www.abc.se/~pa/uwa/euproj01.html. 8 See website supra note 7. Various environmental conditions in which these sites reside include lake, brackish, and sea waters. All wrecks are reported to be well preserved and include the Darsser Cog, a 13th-century medieval vessel from the mouth of the Prerowstrom, a narrow straight on the southern coast of the Baltic Sea; the Burgzand Noord 10 Wreck, dating to the second half of the 17th-century and possibly of German origin, in the western part of the Waddenzee; the Vrouw Maria, a merchant vessel that sank in the southwest Finnish archipelago in 1771; and the paddle steamer E. Nordewall, which went down in Lake Vattern, Sweden, in 1856.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

31

remember that in situ preservation is not the only alternative. There are times when it simply proves impractical. Consider the Kinneret Boat. 9 During the winter of 1986, two brothers – Moshele and Yuval Lufan – discovered the remains of a wooden boat embedded in the lake floor of the Yam Kinneret (Sea of Galilee), adjacent to the ancient harbor of Migdal (Tarichaeae) near Kibbutz Ginosar, in northern Israel. A severe drought throughout 1985 and 1986 had caused the water of the Kinneret to recede, exposing vast expanses of shoreline and, consequently, the partial outline of a boat encased in mud. Mortise-and-tenon joinery of the extant hull indicated the craft was, indeed, ancient, but an exact date was indeterminable without further testing and expert consultation. Until such activities could be realized, it was decided that the best measure to protect against site vandalism was to keep the discovery both secret and in situ. Portions of the boat exposed by initial investigation were reburied, and ―additional steps to hide its location‖ were taken by archaeologists.10 Within a matter of days, however, news of the find made its way to the press where members immediately and irresponsibly deemed it ―the Jesus Boat.‖ A longstanding tale of a Turkish ship laded with gold further fueled imaginations and, before long, small bands of treasure seekers were active on the lakeshore. When, late one night, the Lufan brothers reported seeing the glow of flashlights near the site, Avraham Eitan, Director the Israel Department of Antiquities and Museums, ordered the excavation of the boat in an attempt to prevent ―looters from preempting archaeologists.‖ In this instance, though leaving the boat ―in the place‖ was the preferred first option for obvious security concerns, the threat of destruction by those intent on personal gain dictated an alternate approach. In sum, in situ preservation is applied when environmental factors, public access, and cost considerations have determined it to be the most practical choice for safeguarding and managing heritage.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

9

Subsequent radiocarbon dating of the hull, along with construction features and associated artifacts, including ceramics and weaponry, conservatively suggest a date range from the first century BCE to the close of the first century CE for the Kinneret Boat. For five days in February 1986, J. Richard Steffy examined the remains of the vessel. Although the mud-encased outer hull was inaccessible, he studied construction details of the boat‘s interior, including the keel, planking, frames, and fasteners, the result of which was a preliminary report that, in his own words, was ―extremely limited in scope.‖ Since Steffy‘s initial work, several important developments have occurred: the boat has been conserved and permanently displayed at Kibbutz Ginosar; Ella Werker, from The Hebrew University of Jerusalem, finished the botanical identification of boat‘s structural components; and I have neared completion of a detailed examination of the hull, using the scrive-board and joggle-stick technique of ―taking off‖ lines. This latter investigation, supplemented with digital images and computer-aided design (CAD) technology, has rendered a more complete picture of the extant hull and new insights into how this small boat was constructed. For more on the Kinneret Boat, see Wachsmann, S. 1990. The Excavations of an Ancient Boat in the Sea of Galilee (Lake Kinneret). ‗Atiquot (English Series). Volume XIX. Jerusalem, Israel; Steffy, J. R. 1994. Wooden Ship Building and the Interpretation of Shipwrecks. Texas A&M University Press. College Station, Texas; Wachsmann, S. 2000. The Sea of Galilee Boat: A 2000 Year Old Discovery From The Sea of Legends. Perseus Publishing. Cambridge, Massachusetts; and Cohen, O. 2005. Conservation of the Ancient Boat from the Sea of Galilee. ‗Atiqot 50:219-236. 10 See Wachsmann‘s report, ―The Kinneret Boat: Discovery and Excavation,‖ at http://ina.tamu.edu/library / tropis/volumes/2/Wachsmann,%20Shelley%20%20The%20Kinneret%20.Boat-The%20Discovery%20 and%20Excavation.pdf. Upon discovery of the boat, the Lufan brothers secured the assistance of Mendel Nun, a member of Kibbutz Ein Gev and longtime fisherman on the Kinneret. Nun, regionally considered to be the resident expert on the lake, contacted the Israel Department of Antiquities and Museums. As Wachsmann was the Department‘s Inspector of Underwater Antiquities, he and his assistant, Kurt Raveh, were sent to inspect the find.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

32

Jerome Lynn Hall

Why is it applied?

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Although the ―why‖ of leaving a thing in its depositional place closely parallels the ―when‖ of implementation, additional factors must be considered. First, in situ preservation protects provenience and thereby offers the greatest contextual credibility for site interpretation. Provenience – the exact location where an archaeological constituent such as a structure, artifact, ecofact, or feature is found, and its contextual relationship to other such components and the site – is key in determining and understanding causal events and their aftermaths. There exists a basic premise in historical studies (e.g. primary vs. secondary literature) that the likelihood of understanding the often complex components of an action – the ―how, when, where, and why‖ – increases with temporal and spatial proximities to its source. Just as a crime scene is cordoned off to protect data necessary for interpreting and, hopefully, solving a case, an undisturbed submerged site and its environmental context offer the greatest potential for understanding events surrounding deposition. Nowhere is site provenience more clearly presented and, theoretically, more readily interpretable than in situ.11 Additionally, in situ preservation draws attention to important conservation issues while simultaneously considering – and in instances of public access, presenting – environmental contexts of UCH. The ancient city of Osteodes in the Tyrrhenian Sea near Palermo, Italy is just one of many sites where public access to a diving trail allows tourists to view the interactions of cultural and natural resources in situ. Here visitors may experience dynamic geological, hydrological, and meteorological influences on heritage, factors that museum displays often discuss are unable to duplicate. Therefore, the public neither fully experiences nor wholly appreciates such parameters apart from site visitation. Second, in situ preservation accommodates future non-invasive technologies. At present, the most reliable means of extracting data from material culture is, in most instances, controlled site destruction, commonly known as ―excavation.‖ When deemed necessary, it is to be directed by a qualified investigator employing a competent team and adhering to strict archaeological precepts. Nationalmuseet, the National Museum of Denmark, has argued well that material culture should be left in situ as part of a ―natural archive so that future generations of archaeologists asking new questions (emphasis mine) also have the chance to excavate.‖ 12 Perhaps it is not possible at present to imagine questions that may be formulated in future regarding UCH. Many archaeological practices, procedures, and technologies nonexistent a half-century ago are now commonplace.. Resultantly, new approaches to data collection, analyses and interpretation have been realized, and new stories – unimaginable just a short while ago – are now being coaxed out of material culture. But Nationalmuseet‘s idea to leave UCH in situ so future archaeologists may ―have the chance to excavate‖ may be, in itself, a quickly fading notion. 11

This neither implies nor necessarily means that in all cases material culture is better understood in its place of deposition, for archaeological elements (e.g. artifacts, ecofacts, features, etc.) and their relationships to each other and the site are not always identifiable, appreciated, or adequately interpreted until latter investigatory phases such as library and laboratory research are undertaken. 12 For more on the National Museum of Denmark, see http://www.natmus.dk/sw8878.asp.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

33

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

A day is coming – and is likely not far off – when archaeologists will recall and regard intrusive excavation as antiquated and unnecessary, in much the same way that medical practitioners today view selective surgical procedures of the 20th century.13 Just as imaging technologies such as magnetic resonance imaging (MRI) and computerized axial tomography scans (CAT Scan or CT Scan) have revolutionized medical procedures by permitting internal viewing of the body sans surgery, making possible diagnoses and treatments unimaginable a half-century ago, so too will archaeology in future comprise a series a highly-sophisticated applications hardly imaginable at present. In light of advancements in remote sensing, fiber optics, laser applications, and virtual reality software, it is reasonable to envision future technologies that may eliminate completely the need for archaeological excavation. Third, in situ preservation offers an alternative to storage concerns presently faced by museums. Artifacts are routinely ―de-accessioned‖ (sold from inventory) to accommodate new acquisitions, either by using revenue to purchase materials or to address dwindling storage capacity. Leaving artifacts ―in their place‖ amid a stable and protected environment relieves countless architectural, managerial, and curatorial issues. And fourth, in situ preservation is a sustainable strategy for the management of UCH. Much attention has recently been focused both in the scientific literature and the popular media on issues of sustainability. A debate (some would entertain ―argument‖) on whether our collective resources have the capacity to endure into the future has pushed its way to the forefront, though a wealth of data support the beflief that we are presently living unsustainably. The questions remain: how do we reverse this trend, and once having done so, maintain the quantity, diversity, productivity, and accessibility of our collective resources over time? Such inquiry is particularly relevant to cultural resources since, no matter how closely linked or similarly managed they are to natural resources, they are non-renewable; 14 once they disappear, they are gone forever. In situ preservation recognizes and asserts that cultural resources are neither unlimited nor expendable. Inherent in this declaration is the notion that careful usage and effective management are obligatory to ensure future generations have access to cultural heritage and may, therefore, fulfill their own intellectual and aesthetic needs. However, to meet such requirements this generation must seriously re-think many of its perspectives regarding heritage. Perhaps chief among them is what and when (or when not) to excavate. George Bass, Co-Founder of the Institute of Nautical Archaeology and Professor Emeritus at Texas A&M University, has stated his goal to excavate and study a shipwreck from every century in an attempt to understand transitions in ship design and seafaring technology. Such objective definition clarifies if and when a wreck will or even needs to be excavated; it promulgates inquiry-based values, prevents misguided exploitation of heritage, and promotes a reasonable approach to the regard and management of UCH. As Bass has repeatedly stated, his teams have visually surveyed and left undisturbed countless wrecks throughout the Mediterranean. 13

14

Consider, for example, the likelihood that few 21st-century psychiatrists or neurologists would reasonably consider a surgical approach to depression, as many did even as recently as the 20th century. Exceptions, of course, must always be considered. See Hall, J. L. 2007. The Black Rhino. Journal of Maritime Archaeology. Volume 2, Number 2, (December), pages 93-97.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

34

Jerome Lynn Hall

Thus, in light of increased public access to shallow and deep water sites, dwindling and continuously threatened resources, and the preferred ―first option‖ of the Convention, archaeologists are encouraged to accommodate sustainable protection of UCH. Not all shipwrecks must or need be excavated.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

WHAT ARE THE CHALLENGES OF BOTH APPLICATION AND NONAPPLICATION? It isn‘t difficult to comprehend the import of McCandless‘s boots to the story of his life, themselves the material symbol of his mythic journey into the Alaskan wilderness. After all, what more representative artifact of his odyssey, Krakauer‘s novel, or Penn‘s film could a visitor-thief have stolen from that Fairbanks bus? In that singular action – the removal of the boots from the place in which they had resided for years – is underscored the highly problematic nature of in situ preservation: that much like the public trust on which it is predicated, it works until it doesn‘t. Indeed, many factors threaten the security of in situ UCH: physical dynamics such as wind, water and geological movements; environmental exposure; chemical contaminants; and biological processes, to name a few. Yet even these have, in many instances, human catalysts. In his article, ―Conserving the In Situ Archaeological Record,‖ W. D. Lipe not only concludes that ―population growth, economic development, and elite acquisitiveness will pose enormous threats to the in situ archaeological record throughout the world during the 21st century,‖ 15 he characterizes them as ―inevitable.‖ The immensity of human threat to heritage – through cultural values, preferences for war, urban sprawl, and burgeoning capitalism, among other factors – especially in developing nations, must not be underestimated. Even the most blameless of human intentions poses threats to sustained archaeological preservation in situ, as illustrated in the plight of Khufu‘s solar bark. In 1954, archaeologist Kamal el Mallakh made a startling discovery immediately outside the Great Pyramid of Giza, in Egypt.16 The pyramid, constructed as a tomb for Khufu (or Cheops) nearly five millennia previous, was the focal point of a burial complex in which several pits were found carved in the surrounding bedrock. 17 Inside one of these pits were 1,224 pieces of a Nilotic vessel – one of Khufu‘s ―barges‖ – beautifully preserved in the dry climate of the Egyptian desert. The timbers have since been assembled into a 142-foot vessel that now resides in its own museum next the Great Pyramid.

15

Lipe, W. D. 2000. Conserving the In Situ Archaeological Record. Conservation. Volume 15, Number 1, pages 17-20. See also http://www.indiana.edu/~arch/saa/matrix/afm/afm_manu.html. 16 For more on the first pyramid boat, see Lipke, P. 1984. The Royal Ship of Cheops: A Retrospective Account of the Discovery, Restoration and Reconstruction Based on Interviews with Hag Ahmed Youssef Moustafa. British Archaeological Reports (B.A.R.). Oxford, England. 17 Khufu, also known as Cheops, was an Old Kingdom (Fourth Dynasty) Pharaoh who reigned from circa 2589 to 2566 BCE.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

35

Simultaneous with this discovery was the detection of another boat in a separate pit which, it was decided, was to remain in situ.18 In an interview for Archaeorama‘s ―On the Phone‖ podcast series, Zahi Hawass, chief of Egypt's Supreme Council of Antiquities, and Cheryl Ward, Associate Professor of Anthropology, Florida State University, reported to writer and producer Rossella Lorenzi that this sister boat to Cheops‘ now famous bark remained in its underground chamber for 31 years before a team of scientists inserted a specialty-built camera, designed to preserve the environmental integrity of the pit, to observe the second deconstructed vessel. 19 As a result, Lorenzi notes, ―the glorious heap of beams and planks can now be seen for the first time by the public just as it was left by the ancient Egyptians 4,500 years ago – fully disassembled and carefully stacked. Tourists can view images of the inside of the boat pit from a camera inserted through a hole in the chamber's ceiling.‖ Though this was an exciting discovery and a commendable attempt to preserve Khufu‘s second barge in situ, Hawass contends that, nevertheless, something went wrong: it appears that in 1954, when archaeologists opened a small hole leading into the pit, they inadvertently provided a passage way for insects to invade the chamber. Subsequently, the boat‘s timbers have suffered damage. Add to this that the original photographic probe revealed part of the chamber roof had collapsed onto the wood, likely due to a brick-making machine placed unknowingly above the second boat pit when the museum to house the first bark was being built. Whether intentional or not, human incursion often has disastrous effects on heritage. Resultantly, Egyptian authorities are reviewing a proposal by Japanese archaeologists to excavate and rebuild the second pyramid boat.20

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Physical Threats At low tide, the shallow waters of a highly-accessed public beach in La Jolla, California (near to where I was born and presently reside) occasionally uncover stone mortars dating to the Middle Holocene, when coastal sea level was considerably lower than today. 21 These lithic artifacts were likely associated with fishing activities of the La Jolla Indians, either as net weights or for grinding chum to be used as bait. A combination of initial long-term sea level change and daily tidal fluctuation – both physical processes that greatly affect UCH – expose these remnants of Native American material culture to their greatest menace: human 18

Interestingly, a total of seven pits were originally found. For more on the second boat discovered at Giza, see the National Geographic video by Barrat, J., B. Breger, E. Grant, and P. Prentice. 2002. Egypt: Secrets of the Pharaohs. NGT, Inc. A National Geographic EXPLORER presentation. 19 Lorenzi, R. 2008. Pharaonic Boat to Be Excavated, Reassembled. Discovery News. 25 July, at http://dsc. discovery.com/news/2008/07/25/egyptian-boat.html. Lorenzi‘s interview with Drs. Hawass and Ward may be found at http://odeo.com/episodes/23226397-Puzzle-Of-The-Pyramid-Boats. 20 Lorenzi, supra note 19. According to Hawass, the project, proposed by Sakuji Yoshimura of Waseda University, in Tokyo, Japan, will take five years to complete and will cost 10 million dollars. 21 See Masters, P. M. 1983. Detection and Assessment of Prehistoric Artifact Sites off the Coast of Southern California. In: Masters, P. M. and N. C. Flemming. 1983. Quaternary Coastlines and Marine Archaeology: Towards the Prehistory of Land Bridges and Continental Shelves, pages 189-213. Academic Press. London, England. See Taylor, N. 2006. Digging for History at the San Diego Archeological Center. Fallbrook/Bonsall Village News. Issue 50, Volume 10. Friday, 15 December. See also http://www.thevillagenews.com/story.asp?story_ID=19346.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

36

Jerome Lynn Hall

intervention. When sitting upright on the seabed, their bowl-like features are clearly recognizable; when inverted on the sea floor, however, they appear as stone cobbles and thus go unnoticed by a majority of beach goers. Though many such mortars have been removed by souvenir hunters (usually SCUBA-clad collectors) over the past half-century, educational and protective efforts to preserve these valuable associations with our aboriginal history appear relatively successful. Many remain in situ. In addition to tidal fluctuations and long-term sea level changes, a host of other physical processes directly affect heritage, including earthquakes, landslides, erosion, scouring and topographical transformations in lake, river, estuary, and sea beds. Many are attributable, at least in part, to human activities such as architectural incursion, agricultural practices, redirection of waterways, and sustained atmospheric warming, to name a few.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Environmental Threats Because so much of what we do directly affects our waterways, it is often difficult to differentiate between environmental influences on UCH and direct human impact. More often than not, the two are linked. Activities such as trawling, discharge, and terrestrial littering all greatly affect the status of heritage, as do naturally-occurring chemical and biological processes such as corrosion and degradation by bacteria and mollusks. Yet even many of these latter threats are directly linked to human, terrestrial-based activities. In light of these many hazards, long-term survival of UCH cannot be guaranteed by in situ preservation. But neither may its safety be assured through painstaking laboratory conservation and display in publicly-accessible museums: chemical, biological, and environmental factors pose threats even in these carefully monitored environs. In either case, protective measures must be continuously implemented. Preservation of heritage outside an immediately controlled setting such as a museum, laboratory, or public display center carries countless environmental challenges, but also poses ecological threats. One such hazard is the impact that repeated use has on natural resources, such as reefs, rivers, bays, and estuaries where UCH is located. Though various treaty provisions are in place to protect the archaeological and scientific integrity of cultural resources, the immediate natural environment must also be considered.22

Insufficient Legal Protection Lipe further cites insufficient protective infrastructures in most places around the world as ―threats‖ to UCH, admonishing that protective laws and public policies need to be strengthened and that ―those dedicated to archaeological conservation must redouble their efforts…to broaden the base of public involvement in archaeological conservation, and to 22

Article 5:viii of the Valetta Treaty of 1992 notes that ―each Party undertakes to ensure that the opening of archaeological sites to the public, especially any structural arrangements necessary for the reception of large numbers of visitors, does not adversely affect the archaeological and scientific character of such sites and their surroundings.‖

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

37

direct their energies toward preserving and studying archaeological sites rather than into struggles among groups that approach conservation from different perspectives.‖23 In surviving and emerging democracies, the people are the government. Therefore, challenges to imperiled UCH posed by outdated infrastructures, apathetic constituencies, or inadequate legal instruments are citizenship matters and, consequently, demand public action.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

CULTURAL THREATS To these aforementioned challenges we may add the ―cultural threats‖ of complacency and substitution. In the truest sense of the word and in its broadest definition, culture is survival education. In standard ―textbook‖ vernacular, it comprises norms, values, and beliefs agreed upon and shared within a group, then passed inter-generationally. In other words, it is learned behavior in group-sanctioned environs aimed at sustaining a population. Resources – whether natural, cultural, social, economic, political, or moral – are things we value because they have worth for our wellbeing. But they are also ephemeral: if taken for granted or mismanaged, they disappear – and in some cases, irretrievably. The threat of complacency, an inability to appreciate and sustain resources, is often a cultural one. Just as industriousness may be normative within a population, so too may be an attitude of complacency; both mindsets may be passed forward. Likewise, ―substitution‖ poses very real threats to cultural heritage. English philosopher and political economist John Stuart Mill, in his Principles of Political Economy,24 provides a lesson many 21st-century enterprises seem to have lost, forgotten, or never realized: the most important gifts bestowed through commerce are intellectual and moral, not economic. We must learn that the value of our resources, regardless of type, far surpasses what the marketplace says they are worth in legal tender. As Americans, we are culturally conditioned to regard free enterprise as the path to realizing our collective economic, social, and moral aspirations. But such viewpoints may be highly problematic. What we are learning at the close of the first decade of the 21st century, as we watch longstanding financial institutions implode through mismanagement and ill-concealed corruption, is that a little or unregulated free market may be just as domineering, exclusive, constrictive, and jingoistic as any tyrannical government regime history has birthed. In a capitally-fueled democratic society, we know instinctively to keep a weather eye open for government oppression; we have not, however, been equally as vigilant in our assessment of the market. Substitution, the tendency to reduce our collective resources to their ―market values,‖ or to see them largely or exclusively for their economic merits, is both offensive and intolerable.

23 24

Lipe, supra note 15. Mill, J. S. 1900. Principles of Political Economy; With Some of Their Applications to Social Philosophy. (Originally published in 1848). P. F. Collier & Son. New York, New York.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

38

Jerome Lynn Hall

Exclusionary Commercial Exploitation (Treasure Hunters)

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Though clearly stated as the preferred response to UCH, in situ preservation is not always the rational first option. Because many of the aforementioned threats, whether physical or environmental, pose real challenges to heritage protection, special interest groups such as salvors and treasure hunters are keen to take advantage of such scenarios in order to exploit resources for their own exclusionary purposes. As George Bass pointed out in his poignant on-air ―trialogue‖ with television host Bryant Gumbel and treasure hunter Greg Stemm, most damage to UCH is the result of direct human activity.25 Co-incidental with the enforcement of the UNESCO Convention in January 2009 was the announcement by Florida-based treasure-hunting company Odyssey Marine Exploration, Inc (OME)26 of its discovery of HMS Victory,27 a First-Rate Royal Navy warship lost in 1744 off the Channel Islands near England. As a publicly-traded company on the North American Securities Dealers Automated Quotations (NASDAQ) stock exchange, OME specializes in deep water wrecks, especially those known to have carried substantive quantities of precious metals or other commercially valuable cargoes at the time of demise.28 Though promoting itself as a corporation practicing archaeology, it nevertheless ―offers various ways to share in the excitement of deep-ocean exploration by making shipwreck treasures and artifacts available to collectors, (author‘s emphasis), the general public and students through its webstore, exhibits, books, television, merchandise, and educational programs.‖ One need not look too carefully to determine who and what defines OME‘s corporate identity: ―collectors‖ are strategically placed before ―general public and students‖ in a blatant declaration of commercial priorities. Neither is it difficult to miss promotional materials on this same website heralding recovery of ―over 50,000 coins and 14,000 artifacts‖ from one site, ―500,000 silver and gold coins, weighing 17 tons,‖ from another. A recent press release from OME Chief Executive Officer Greg Stemm announced yet another treasure-rich project 25

A reponse to this program, which aired on the NBC television in the late 1980s, may be found in Cockrell, W. A. 1998. Why George Bass Couldn‘t Convince Mr. Gumbel: The Trouble With Treasure Revisited, Again. In Babits, L. E. and H. van Tilburg, Maritime Archaeology: A Reader of Substantive and Theoretical Contributions. The Plenum Series in Underwater Archaeology. Plenum Press. New York. This article was originally published in Carrell, T. L., ed. 1990. Underwater Archaeology Proceedings, Conference on Underwater Archaeology and Historical Archaeology, pages 13 to 18. Tuscon, Arizona. 26 For more on Odyssey Marine Exploration, Inc. see http://www.shipwreck.net/. 27 For more on HMS Victory, see http://shipwreck.net/pr176.php and http://www shipwreck net/hms victory.php. 28 Other sites salvaged by OME include (a) the SS Republic, a Civil War-era side-wheel steamship carrying a large cargo of gold and silver coins that sank off the Georgia coast in 1865 while traveling from New York to New Orleans. For more on the SS Republic, discovered by OME in 2003, see http://www.shipwreck.net/ssrepublic.php; (b) OME claims a ―strong likelihood‖ that they have discovered HMS Sussex, an English 80-gun warship carrying a cargo of coins that sank off Gibraltar in 1694. For more on this (1998-2001) find, its hypothetical identification, and the subsequent ―excavation‖ report, see http://www.shipwreck.net/hmssussex.php (link to the report at this page); (c) a deepwater site off the Dry Tortugas simply designated the ―Tortugas Shipwreck,‖ but which OME has suggested may be the remains of Nuestra Señora de Consolación, a Spanish vessel sailing with the 1622 Tierra Firma Fleet. For more on the ―Tortugas‖ project (1990-91), see http://www ship wreck.net/ tortugas.php; (d) a treasure-laded site with the code name ―Black Swan‖ that, according to OME, ―may be associated with the Spanish vessel Nuestra Señora de las Mercedes, which sank after exploding in 1804.‖

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Things, Inc.: A Case for In Situ Application

39

of undisclosed identity and location code named ―Symphony.‖ 29 ―Research,‖ notes Stemm, ―suggests that at least two shipwrecks in the ‗Symphony‘ area are commercial vessels with significant cargoes of gold coins, which are very hot commodities today in the collector market‖ (author‘s emphasis). Clearly, the enterprise in which Stemm and company engage has nothing to do with archaeology, regardless of how they promote themselves publicly. I have previously characterized the 21st-century American treasure hunter as typically male, Caucasian, blue-collar, mid-western, middle-aged, and middle-class. Though widely represented in both the business world and the public sector, ―he‖ generally lacks professional archaeological training or credentials.30 As may clearly be seen in the preceding corporate example, his motives are rooted not in intellectual curiosity but in monetary profit; and his capricious indulgences fuel the core of an often legal but unethical market that not only challenges the protection of UCH, but our cultural notions of ―complacency‖ and ―substitution.‖ For years Americans have been enamored with, mesmerized by, and deluded into believing the questionable logic underpinning a ―trickle-down philosophy,‖ the notion that if one group of people is empowered and trusted to behave responsibly with a given resource, the rest of us will be the collective beneficiaries of their enterprise. Their prosperity, loosely defined, will ―trickle down‖ upon us. The overwhelming truth of this feudal ideology, however, is that a majority feeds on scraps while lords feast at the table of excess. Those lucky enough to catch falling crumbs are duly expected to behave thankfully. In the end, one group gorges itself; the other simply survives. So it is with treasure hunters and the exclusive privatization of cultural resources. Robert B. Reich, Professor of Public Policy at the University of California Berkeley (and former Secretary of Labor under President Bill Clinton) suggests a caveat emptor approach to dealing with the market place. In other words: ―buyer beware!‖ In a discussion of ―morally objectionable outcomes,‖ Reich notes that, at times, market values conflict with our sense of principled commitments. Resultantly, we often ―assign responsibility for them to producers and sellers rather than to ourselves as consumers.‖31 In other words, our purchases sustain the market; therefore, we are responsible for outcomes – ethically unacceptable or otherwise – by our choices.

29

See OME press release number 188, dated 27 August 2009, at http://www.shipwreck.net/pr188.php, or access the article on Maddux Business Report Daily News Wire (28 August 2009) at http://www.madduxpress.com/technology/2009/08/28/odyssey-marine-exploration-completes-phase-

one-of-symphony-project-1541. The article reveals that ―proceeds of any recoveries from this search area will be split with the government and project partner with an anticipated 78% of the gross income of the project retained by Odyssey.‖ Location details for the wrecks were not disclosed. 30 J. L. 2007. The Fig and the Spade. Archaeology Watch, pages 2-10. Archaeological Institute of America. 15 August. http://www.archaeological.org/pdfs/archaeologywatch/figandspade.pdf. So accurate was this ―typical‖ description that an attorney for a well-known treasure hunter expressed at the January 2009 meeting of the Archaeological Institute of America (AIA) in Philadelphia that he felt I had intentionally singled out his client. Apparently, his client felt the same. 31 Reich, R. B. 2008. Does the Free Market Corrode Moral Character? Thirteen Views on the Question, pages 38-40. John Templeton Foundation. West Conshohocken, Pennsylvania. See also Reich, R. B. 2007. Supercapitalism: The Transformation of Business, Democracy, and Everyday Life. Alfed A. Knopf. New York.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

40

Jerome Lynn Hall

Therefore, when we purchase archaeological artifacts on eBay, or support media organizations that advocate the exclusionary privatization of cultural heritage through treasure hunting, or enter the bus and remove a pair of boots, we fail – or choose not – to see a connection between our consumptive decisions and moral responsibilities.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Can We Afford Treasure Hunting? In the ideal world of in situ preservation, the faded blue-and-white Fairbanks City Transit System bus where McCandless spent his final days still shelters those artifacts of his Alaskan odyssey. In the world, however, that is the grim reality of Penn‘s discovery, one person selfishly removes a piece of a story and seemingly profits from it, leaving the rest of us to stare at the vacant space once occupied by a pair of well-worn boots. ―We have a greed with which we have agreed,‖ croons Seattle-based musician Eddie Vedder in his hauntingly mellifluous sound track to Penn‘s austere and contemplative motion picture.32 Or, as Roman playwright Titus Maccius Plautus attested some twenty-one centuries earlier, ―Homo homini lupus,‖ – ―man is wolf to man.‖33 Some one hundred years before McCandless entered Alaska, another restless youth named John Muir trekked into the Great American Wilderness holding ―precious little sympathy for the selfish propriety of civilized man.‖34 He was moved deeply by what he saw in the Yosemite Valley, as he was among other places through which he journeyed within the United States. Steeped in the democratic ideal of social equality and a harboring a profound sense that what he had seen and experienced should be enjoyed by all, the future first president of the Sierra Club pressed forward to further the work of politically-active conservationists Galen Clark, U.S. President Abraham Lincoln, and U.S. President Teddy Roosevelt by protecting wilderness and securing public access for future generations. When Muir noted the considerable damage that private herding had done to the widely accessible and seemingly unlimited natural resources in Yosemite, his response was this: ―To let sheep trample so divinely fine a place seems barbarous…the harm they do goes to the heart…‖35 So it is with UCH. When UNESCO reports that during the last 30 years, more than 160 ―large‖ shipwrecks have been ―commercially exploited…with up to 500,000 objects recovered and sold per wreck, and the ship‘s hull left destroyed,‖ the offense strikes deeply 32

―Society,‖ written by Jerry Hannan, is sung by Eddie Vedder on the soundtrack for the motion picture Into The Wild. J Records, 2007. 33 Verse 499 in Asinaria (The Ass-Dealer), a comic play set in Athens, reads thusly: ―Perhaps so: but still, you shall never this day persuade me to entrust to you, whom I don‘t know, this money. A man to a man is a wolf, not a man, when the other doesn‘t know of what character he is.‖ See Riley, H. T. 1894. The Comedies of Plautus, pages 477-524. George Bell and Sons. London. Riley‘s note (page 502) ascribes the saying ―Homo homini lupus‖ (―Man is to man a wolf‖) as ―probably implying much the same as the more celebrated words of a modern Poet: ‗Man‘s inhumanity to man makes countless thousands mourn.‘‖ The entire phrase is ―Lupus est homo homini, non homo, quom quails sit non novit,‖ or ―one man to another is a wolf, not a man, when he does not know what sort he is.‖ 34 Muir, in Worster, D. 2008. A Passion for Nature: The Life of John Muir, page 138. Oxford University Press. Oxford, England. 35 Sargent, S. 2008. John Muir in Yosemite, page 14. Flying Spur Press. Palm Springs, California. For more on John Muir and his experience herding sheep in the Sierra high pastures, see Muir, J. 1998. My First Summer in the Sierra (originally published in 1911). Houghton, Mifflin Company. New York.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

41

into the heart of heritage. 36 The probing question proffered by Robert Frost at the onset of this chapter suddenly becomes as prescient as it is trenchant: just how much must we lose before we awaken? Yet many innovative ―Trojan horse‖ entrepreneurs and economic ―think tank‖ operatives abound, waiting to be wheeled in through the gates of archaeology, each one eager to exploit heritage for their exclusionary purposes. Behold the Milken Institute‘s forward looking document ―Financial Innovations for Developing Archaeological Discovery and Conservation,‖ which acknowledges at the onset that

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

―The acquisition of antiquities, once the concern of academics and the pleasure of a privileged few, has developed into an international industry. In recent decades, particularly, the market has exploded with the expansion of global wealth and high-tech sales mechanisms. It was only a matter of time before a buyer in San Francisco could log on to eBay and purchase a twenty-first century B.C. Sumerian cylinder seal half a world away. And while the legal antiquities trade only generates an estimated $200 million a year, the illicit market, 37 according to some experts, circulates billions.‖

Report authors MacLean and Yago (2008:6) focus their concerns on issues surrounding the ―regulation of supply and understanding of demand,‖ not in an attempt to underscore threats to heritage through attenuation and loss of material culture, rather to recognize the ―value chain‖ and the proper market response to such opportunities. By illuminating the economic benefits of licit trade in the dark world of black markets, Milken Institute hopes to show that moral high ground may often be paved with prosperity. It‘s an age old tactic: position one‘s self (or one‘s corporation) next to someone or something intensely more sinister and, by comparison or default (and a little indiscriminate thinking on the part of the public), ‗lily-whiteness‘ shines forth. What, really, is $200 million when compared with ―billions?‖ As they cite instances where ―archaeologically rich but financially poor‖ nations can neither afford investment in archaeological projects nor provide adequate protection for cultural resources, MacLean and Yago suggest a rationale for the Financial Innovations Lab: ―to ascertain how to monetize archaeological resources to reduce looting and enable local economic development.‖ After all, they didn‘t create the market; but that in itself is no reason not to capitalize on it. What results is a document fraught with desperation to profit on archaeological sites and their constituent material culture. Hybridized attempts such as these to broker deals where heritage is privately owned and profits are used to subsidize further 36

37

See http://portal.unesco.org/culture/en/ev.php-URL_ID=34464&URL_DO=DO_TOPIC& URL_SECTION=201. html. UNESCO lists several examples of wrecks ―damaged or destroyed by commercial exploitation,‖ including Geldenmalsen, Nuestra Señora de Atocha, Tek Sing, and Titanic. MacLean, C. and G. Yago. 2008. Financial Innovation for Developing Archaeological Discovery and Conservation. Financial Innovations Lab Report, Volume 7, November. Milken Institute, Santa Monica, California, citing Kozoloff, A. 2005. ―The Antiquities Market: When, What, Where, Who, Why, and How Much?‖ In Gibbon, K. F. 2005. Who Owns the Past? Cultural Policy, Cultural Property and the Law. Rutgers University Press. Piscataway, New Jersey. According to the report, Financial Innovations Labs ―bring together researchers, policy makers, and business, financial, and professional practitioner… to create market-based solutions to business and public policy challenges…using real and simulated case studies…[to] consider and design alternative capital structures and then apply appropriate financial technologies to them.‖

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

42

Jerome Lynn Hall

legal treasure hunting disguised as ―archaeological ventures‖ are insufferable. Yet the Milken Institute document taps deeply into normative economic concepts inherent in democracies: private ownership; limited government regulation; and unrestricted access to resources. Archaeological bonds, anyone? In light of longstanding philosophical differences between preservation communities and those who promote exclusionary privatization of UCH, I have called for those concerned for the future of cultural heritage to acknowledge threats posed by its destruction; to admit that, to date, we have lost the public relations war; to ensure adherence to ethical principles and best practices; to redress the deceptive prattle of treasure hunters; to dispel falsehoods that material self-interest, market shares, and the profit-oriented economic rights of a few trump public fairness and collective social good; to support organizations that promote archaeology; and to differentiate between archaeology and all else; or, simply ―call a spade a spade.‖ 38

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Wanted: A Comprehensive and Coherent Definition What, then, does it take to make the preservation of a ―thing in its place‖ a viable alternative in the protection of cultural heritage? Though many, the answers begin with cooperation, obviously; recognition that material culture has more than economic value, certainly; restraints on our active participation in the endorsement of exclusionary privatization of cultural resources, definitely. And, perhaps, something that is lacking in both the broader archaeological discourse as well as a more specific discussion of in situ preservation: a clear definition of what, exactly, comprises ―archaeology.‖ Generally speaking – and as a matter of course introduction to my undergraduate classes at the University of San Diego – I define archaeology as the study of humankind through material culture, a designation neither novel nor original; however, such characterization establishes and acknowledges the inter-relatedness of the discipline to its complementary subjects: cultural anthropology, physical anthropology, and linguistics (thus rounding out the ―four-fold‖ or ―four-field‖ approach to anthropology, or ―the study of humankind‖). Implicit in this explanation is that archaeology is not merely an investigation of artifacts, as most freshmen believe it to be; neither is it simply ―excavation‖ according to prescribed scientific principles, as many treasure hunters are quick to point out, followed usually by a detailed explanation of their voluntary adherence to this very limited component of long and complex process. A quick perusal of The Oxford English Dictionary or Random House Unabridged Dictionary – common sources consulted by non-specialists – reveals that the general notion of archaeology doesn‘t venture far from the typical freshman response.39 Though definitions 38

39

Hall, supra note 30. As noted in the article, the phrase ―to call a spade a spade‖ is the result of several mistranslations over two millennia, eventually making its way into English through John Knox (ca. 1510-72) who stated unequivocally: ―I have learned to call wickedness by its owns terms: A fig, a fig, and a spade a spade.‖ The original implication of this statement is simply to call things by their appropriate names, or to ―call a spade a spade.‖ See page 108 in The Compact Edition of the Oxford English Dictionary, 1971. Oxford University Press. Oxford, England. The terms ―study of antiquity,‖ ―systematic description,‖ and ―the scientific study of the remains and monuments of the prehistoric period‖ are used in the definition of ―archaeology.‖ Surprisingly, Random House Unabridged Dictionary expands this somewhat by adding both ―historical‖ and ―cultural‖ components: ―The scientific study of historic or prehistoric peoples and their cultures by

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Things, Inc.: A Case for In Situ Application

43

within these sources are inclusive of components of archaeology, the academic discipline and its scope of practical application are considerably more comprehensive. Evidence for such ambiguity in terminology may be seen in a 6 February 2009 post on ―Beyond Stones and Bones,‖ an online ―blog‖ managed by author and Archaeological Institute of America (AIA) weekly ―blogger‖ Heather Pringle, in which a contributor identified only as ―History maker‖ posts that OME ―engages in archaeologically sensitive exploration.‖ 40 To this Pringle (a.k.a. ―Heather‖) counters that OME sells artifacts, ―something antithetical to the fundamental principles of archaeology.‖41 Welcome to the American debate on resources, where terms are incautiously defined and decidedly applied with no forethought other than to strengthen a predetermined position. Archaeology balanced on a narrow fence, poised to fall on one side or the other, an outcome usually determined by whichever camp happens to capture and persuade media attention. Archaeologists – myself included – decry the exclusive privatization of material culture and the violation of public trust. Conversely, a treasure hunter advertising a high risk venture with little possibility of a lucrative payoff to their investors often clothes such enterprise in the archaeological elegance of ―careful excavation techniques‖ and ―state-of-the-art conservation practices‖ in hopes of luring monetary support. Such gimmicks are routinely successful, for as photojournalist, adventurer, and amateur underwater archaeologist Peter Throckmorton has noted, treasure hunting shareholders include some of the wealthiest men in the world.42 Resultantly, a coherent and comprehensive definition of what, exactly, comprises archaeology has not been made palatable for the layperson. Open a National Geographic magazine: you are more likely to read an article about the adventures of treasure hunters than you are the legitimate work of bona fide archaeologists. Turn on the television: audiences of armchair archaeologists intent on the visceral thrill of discovery become witnesses to something akin to ―grab-and-go,‖ but rarely see the intricacies associated with the latter stages of archaeological process (i.e. prolonged and costly conservation, tedious documentation, exhaustive comparative research, etcetera). Whether it‘s the adventures of thrill-seeker and treasure hunter Kirsten Gum as she ―dives off the shark-infested coast of Florida in search of fossilized sharks‘ teeth and then braves the hot, sticky swampland of South Carolina to recover relics from the time when plantations were a way of life,‖ or Becky Worley, host of Discovery Channel‘s Best Places to Find Cash and Treasures, as she takes you on an ―exciting, fun-filled journey to uncover lost relics, buried jewels and other valuable items — at real locations that are accessible to the public,‖ it‘s all about product. If you happen to be skeptical regarding the monetary value of these treasures, rest easy; the answer to your financial concerns will be addressed when Becky introduces you to certified appraisers who will assess the price of these artifacts on the final episode, appropriately titled,

analysis of their artifacts, inscriptions, monuments and other such remains, especially those that have been excavated.‖ See Random House Unabridged Dictionary. 1993 (2nd Edition). Random House. New York, New York. 40 See http://archaeology.org/blog/?p=271. Odyssey‘s Never Ending Quest for Treasure. Beyond Stone & Bone: A Weekly Blog by Heather Pringle. 6 February 2009. 41 Pringle, supra note 40. 42 Throckmorton, P. 1990. The World‘s Worst Investment: The Economics of Treasure Hunting with Real Life Comparisons. In Carrell, T., ed. 1990. Underwater Archaeology Proceedings from the Society for Historical Archaeology Conference, pages 6-10.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

44

Jerome Lynn Hall

―Show Me the Money!‖43 Even OME‘s predatory exploits are chronicled on Discovery Channel‘s ―Treasure Quest,‖ which reminds us that ―even the world‘s most advanced technology is useless, unless you have the most advanced people in the world to run it.‖44 Treasure hunter as Omega Point: Teilhard de Chardin and Charles Darwin may politely disagree; Discovery Channel says it is so. ―Culture,‖ passed inter-generationally. These are but several examples where blurring a very bright line will undoubtedly have repercussions for generations to come. Subscribers and viewers who respect such publications and programs, believe their science reporting to be impeccable, and who subsequently cultivate many of their viewpoints on world issues by following such media leads, are easily confused about what it is that exactly constitutes ―archaeology.‖ It is time to realize, unequivocally, that we cannot afford treasure hunters or their ilk. Neither must we succumb to their stealth financial schemes nor publicly-acclaimed media presentations. Cultural heritage is too valuable and its resources so precariously nonrenewable that we dare not place them anywhere near the unqualified or ill-motivated.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

PROCESS, PRODUCT, AND PRINCIPLES A result of our wealth and excessive conditioning as a consumptive society – steeped in access to and a surplus of just about everything – is that we often gorge on ―product‖ without considering, appreciating, or (at times) understanding the process preceding it. Eventually, complex progressions are reduced to simple results. When such an approach is applied to archaeology, the discipline becomes little more than a gilded death mask, a Byzantine panscale weight, or a horde of Spanish silver coins. To this deficit in the publicly-sanctioned archaeological vocabulary treasure hunters have been quick to respond, seizing on key isolated elements of the archaeological process they routinely employ in their recovery of UCH, including in situ documentation, advanced retrieval techniques, and artifact conservation. That they practice these components of archaeological process is commendable; that many have better equipment and work just as carefully as countless archaeologists is noteworthy: they document artifacts and ecofacts in situ and, when finished, remove them as competently as many of their science-minded counterparts. To their credit, they have succeeded in convincing both the public and the media that by embracing these parts of the archaeological process, they are, in fact, doing archaeology. Many have even gone as far as setting up elaborate conservation facilities, hiring expert conservators, and rendering stabilized artifacts. But these are only components of archaeology. Popular and pseudo-scientific media, however, obscure what any introductory archaeological text presents in simple – if not, simplistic – terms: that archaeology is more 43

See http://www.travelchannel.com/TV_Shows/Treasure_Hunter_Kirsten_Gum/ci.Treasure_Locations.show? vgnextfmt=show&idLink=f03acc34f4f4d110VgnVCM100000698b3a0a_. See also http://cash-and-

44

treasures-wiki.travelchannel.com/page/Treasure+Hunter:+Kirsten+Gum+-+The+Show. See http://dsc.discovery.com/tv/treasure-quest/treasure-quest.html.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Things, Inc.: A Case for In Situ Application

45

than a ―product;‖ it is a process. To such the archaeology and heritage preservation communities must respond directly, clearly, emphatically, uncompromisingly, and repeatedly. The precepts and procedures of archaeology are abundantly clear: design formulation, project implementation, data collection, processing, analysis, interpretation, and publication. 45 But having established this, it is important to note that the archaeological process entails more than the sheer mechanics of extraction and the subsequent procedures of cleaning, conserving, and displaying artifacts. Each step is ―bounded‖ in prescribed ethical behaviors: inter alia the academic and practical competence of researchers, the principled treatment of material culture and the people(s) in whose territories it originates/resides/belongs, and adherence to a code that essentially defines the discipline. From fundraising to publication, that policy is clear: deviance from any part of it negates that archaeology is practiced. It is for this purpose and to this end that more time, energy, and intelligence must be invested in public education. Until we stop focusing solely on the mechanics of excavation and the implementation of conservation methods as criteria for fulfilling the archaeological process, we will continue to be frustrated with media coverage and the cleverly devised deceptions of treasure hunters. When we convincingly educate the public that archaeology is only archaeology when it adheres to a clearly defined process bounded in unambiguously prescribed ethical behaviors, then they will see treasure hunting for what it is: an industry of personal enrichment and conspicuous consumption at the expense of the public good. In an age of rampant consumerism, characterized, in part, by electronic bargain basement auction houses, where everything, it seems, is for sale; when values-based ideals succumb to what French Philosopher Bernard-Henri Lévy characterizes as ―the mad rule of money,‖46 how refreshing it is to encounter a conservation-minded perspective, if even from a Hollywood maven such as Penn. There is something resoundingly sophisticated in his dismay and public declaration. He gets it: someone takes something which they feel entitled to own – or, perhaps, to sell – and in so doing disregards ―Story,‖ disconnects the public from their right to access the resource, and disrespects the true value of material culture. Though motive is never easy to determine, the result is clear: a gaping hole exists where something once was and now is not. And though the action may be regarded as ―harmless‖ by some, it is not. Amplify the deed to pilfering several artifacts or, perhaps, looting an entire site and suddenly the very underpinning of a culture is threatened. Such misguided application of Manifest Destiny – the notion that ―things‖ are there for the taking – is exclusionary; it smacks of neo-colonialism, separates people from their heritage, and diminishes access to Story. Such actions – legally sanctioned or not – disconnect a group from its material past, strip it of birthright, jeopardize cultural identity, and, ultimately, negate humanity. ―Your-heritage-is-more-valuable-to-meeconomically-than-to-you, culturally‖ is an attitude overtly racist and shamelessly inhumane.47

45

What follows in the text is an edited version of the author‘s response to Pringle‘s blog, supra note 40 for citation. 46 Lévy, B. H. 2008. Does the Free Market Corrode Moral Character? Thirteen Views on the Question, pages 28-30. John Templeton Foundation. West Conshohocken, Pennsylvania. 47 Hall, supra note 30, page 5.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

46

Jerome Lynn Hall

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Our Stories Are Important Consider the plight of the Parthenon Marbles, classical sculptures removed from the Acropolis in Athens, Greece. Thomas Bruce, the Seventh Earl of Elgin, obtained dubious permission from the Ottoman government to procure these legendary architectural works. For over a decade (from 1801 to 1812), his workers removed more than half of the Parthenon‘s surviving monuments, eventually shipping them to England, where they now reside in the Duveen Gallery of the British Museum in London.48 Following much popular acclaim and heated debate within Parliament, they were purchased by the British government and placed on display in 1816. The history of this internationally recognized monument and the mount on which it stood is long and fraught with numerous calamities. Erected in the 5th century BCE on the Athenian Acropolis as a tribute to the goddess Athena (protector of Athens), the Parthenon was witness to destruction at the hands of the Visigoths near the close of the 4th century CE. Christians ―recycled‖ the eastern end of the monument as a church apse in the 5th century CE and, a thousand years later, Turks remodeled the extant church into a mosque, converting the campanile into a minaret. Add to this the destruction which rained down on the site when Venetian soldiers shelled the Turks (who by then were using the Parthenon as a powder magazine). The close of the 17th century saw Danes removing the heads of the metopes. If ever an argument was warranted against in situ preservation, one needs to look no further than the Parthenon. After all, do not the ravages of war (undoubtedly the most insulting application of human intervention), exposure to natural elements, environmental degradation attributable to pollution, and vandalism resulting from public access conspire to suggest that these architectural elements are better placed in the British Museum, where all may see them? Absolutely not; but with such justifications, pieces of the Parthenon now reside in the Vatican, Copenhagen, Paris, Strasbourg, Würzburg, Heidelberg, Munich, and Vienna. And nowhere, perhaps, is the import of material culture to Story – and Story to identity – more abundantly evident than in the archaeological plight of Jerusalem‘s Temple Mount. 49 On 25 June 2008, I passed through the Dung Gate of the Old City and into the Jerusalem Archaeological Park-Davidson Center in the Jewish Quarter. The jackhammer staccato of steel-on-stone punctuated the early morning air near an area known as Solomon‘s Stables, on the southern end of the Temple Mount. For nearly thirty minutes I was the only visitor inside the park, during which time music blared from atop the Western Wall in a futile attempt to drown out the sound of hammers. Eventually, by mid morning when tourists began streaming into the park, both hammering and music ceased. For years, excavation of Jerusalem‘s Temple Mount has been the focus of heated dissent between preservation-minded Israelis and the Muslim Waqf (Muslim Religious Trust) – the 48

49

See Nagel, S. 2004. Mistress of the Elgin Marbles: A Biography of Mary Nisbet, Countess of Elgin. William Morrow. New York. A fictional account of the Parthenon Marbles controversy may also be found in Essex, K. 2008. Stealing Athena. Doubleday. New York. For more on the Jerusalem Archaeological Park-Davidson Center, see http://www.archpark.org.il/. In an article titled ―Leading Israelis Protest Against Temple Mount Construction That Endangers Important Archaeological Evidence‖ (Ha‘aretz, 21 January 2001), correspondent N. Shragai noted that 1500 tons of rubble had been removed ―in recent weeks‖ from the site, observing that ―a tractor fitted with a rockbreaking hammer had been used…for the first time.‖ The article may be read at http://www.harhabayt.org/haaretze21-01-01.html.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

47

latter to whom the Israeli government delegated authority of the Temple Mount over three decades ago. Amidst a torrent of international criticism, the Waqf claims to be renovating portions of their mosque complex, but many maintain it is overseeing the destruction of any materials implicating a historical Jewish presence. Israeli archaeologists sifting through excavation debris dumped over the Eastern Wall of the Temple Mount and into the Kidron Valley have found artifacts dating as early as the First Temple Period. The Committee for the Prevention of the Destruction of Antiquities on the Temple Mount, formed in 2000 to protect and preserve cultural heritage regardless of ―political, national, or religious affiliation,‖ has put forth several demands to the Israeli government. These include the cessation of destruction on the Temple Mount; opening the area to international media; enabling the Israeli Antiquities Authority (IAA) to protect antiquities within the State of Israel, and maintaining the status quo on the Temple Mount such that ancient remains will be protected.50 Such sentiments were echoed by Biblical Archaeology Review editor Herschel Shanks when his 17 July 2000 editorial was published in the The Washington Post, an opinion that resonated internationally. ―The Temple Mount is the patrimony of the world,‖ said Shanks, unapologetically, and ―the world's patrimony is being carried off in dump trucks.‖ 51

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

―It is unacceptable,‖ wrote Ha‘aretz correspondent Nadav Shragai in 2001, ―that in a culturally enlightened and law abiding country someone can authorize such a serious crime, of such enormous proportions, to carry on for more than a year…causing unprecedented damage to the most important archaeological site in the country, and causing irreparable damage to 52 rare archaeological evidence ... at one of the rarest cultural legacies in the world.‖

As important as – if not more so than – the loss of world patrimony is this: if the Wafq succeeds in damaging, destroying, or simply removing in situ material culture, what recourse is left Israelis when arguments are put forth that there never was a Jewish presence on the Temple Mount? Even if artifacts are not destroyed, but only displaced from their original site 50

This group ―is a non-political, volunteer, public body composed of archaeologists, jurists, educators, naturalists and public figures…set up on an ad hoc basis to prevent the continuation of the destruction of the antiquities on the Temple Mount‖ (Read entire description at http://www.har-habayt.org/cpdatm .html). 51 Shanks‘ letter was published in the Opinion Columns, 17 July 2000. A response by Adnan Husseini, Director of the Muslim Waqf in Jerusalem, appeared in The Washington Post (Letters to the Editor, 27 July 2000). The reply categorizes Shanks‘ ―unfounded accusations‖ as ―ludicrous‖ and ―grossly misrepresent[ing] the activities of the Muslim Waqf on the Haram al Sharif.‖ According to Husseini, restoration of the al-Marwani prayer room – enacted under the supervision of Palestinian archaeologists – is in anticipation of the day when peace exists between Palestinian and Israelis, at which time Muslim pilgrims will undoubtedly flood the Holy City. Husseini further notes that ―no structures, artifacts, or archaeological remains from any era‖ have been found during excavation. Mr. Shanks‘ article and Mr. Husseini‘s reply may be read at http://www.har-habayt.org/templemount-a.html. For more on this extremely important and highly volatile issue, see Ami-El, M. 2002. ―The destruction of the Temple Mount Antiquities‖ Jerusalem Letter/Viewpoints. Jerusalem Center for Public Affairs, at http://www.jcpa.org/jl/vp483.htm; Shragai, N. 2001. ―Waqf digs new tunnel on Temple Mount.‖ Ha‘aretz. 23 January. See also at http://www.har-habayt.org/haaretze23-01-01.html; Shragai, N. 2001. ―Barak Orders Police to Tell Waqf to Halt Mount Digging.‖ Ha‘aretz. 2 March. See also at http://www.har-habayt.org/haaretze02-03-01.html. 52 Shragai, supra n. 49.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

48

Jerome Lynn Hall

of deposition, the Waqf may contend that those recovered from the Kidron Valley never had a Temple Mount provenience; that they were simply ―planted‖ by people trying to verify a story. In this instance, without support of in situ material culture, a reasonable Israeli argument diminishes. Nothing good comes from the separation of a people from their history or a minimization of exposure to material verities of the past. What I heard that morning as an indirect bystander – indirect only in that I was not on the Temple Mount, but below it – was the wanton destruction of an archaeological record, the tearing of pages from Story. Remove artifacts from depositional contexts and evidence loses perspective, which is why the careful collection and recording of data characterizes a small, but very important, part of the archaeological process. Misplace material culture from the Temple Mount and you have destroyed a key archaeological paving stone in the roadway of Western Thought.53 In situ preservation acknowledges that Story is important, as are future generations who will assume their places in that Story. If they are to move forward as sentient, rationalthinking participants in free and democratic societies, then it is their task to interpret the past. In situ preservation provides such an option.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Is In Situ Application Successful? As ―preferred‖ and ―first-option‖ strategies for the protection of and understanding of UCH, and in light of the numerous challenges that threaten to render its application ineffective, in situ preservation has been resoundingly successful on an international level. Many – chief among them treasure salvors – question how the goals of public access and education may be realized when the resource – be it a sunken city or a shipwreck – is virtually hidden from view in a medium accessible only by a few. To this UNESCO, noting the growing import of tourism, has illumined numerous examples where public access has been successfully integrated with in situ preservation.54 Museum dive trails at Caesarea, Israel,55 the Florida Keys National Marine Sanctuary in the

53

Weiss, B. 2009. Palestinian Leaders Deny Jerusalem‘s Past. The Wall Street Journal. Friday, September 25. page W13. 54 See http://www.unesco.org/en/underwater-cultural-heritage/the-heritage/museums-tourism/in-situpresentation/. 55 Also known as Caesarea Maritima, the ancient port was constructed by Herod the Great in honor of Augustus Caesar. For more on the excavations at Caesarea, see Frucht, L.E. 2006. Israel Launches World's First Underwater Museum, 30 April, at http://www.sacred-destinations.com/israel/caesareaunderwater-museum.htm. See also Holum, K. 1988. King Herod‘s Dream: Caesarea on the Sea. Norton. New York; Raban, A., 1992. Sebastos: the Royal Harbour at Caesarea Maritima - a Short-Lived Giant. International Journal of Nautical Archaeology 21: 111-124; Reinhardt, E., B. Goodman, J. Boyce, G. Lopez, P. Hengstum, W. Rink, Y. Mart, and A. Raban. 2006. The Tsunami of 13 December A.D. 115 and the Destruction of Herod the Great‘s Harbor at Caesarea Maritima, Israel. Geology 34:1061-1064; Hohfelder, R. 2007. Constructing the Harbour of Caesarea Palaestina, Israel: New Evidence from ROMACONS Field Campaign of October 2005. International Journal of Nautical Archaeology 36:409-415; Votruba, G. 2007. Imported Building Materials of Sebastos Harbour, Israel. International Journal of Nautical Archaeology 36:325-335.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

49

southeastern United States,56 the wreck site of Kronprins Gustav Adolf, in Finland,57 and the aforementioned trail at Punta Gavazzi, in Ustica, Italy, as well as preparations for one along the Wellington coast of New Zealand,58 are all illustrations of how cultural resources may be preserved, displayed, and visited by the public in their environmental contexts. Future plans for sites include underwater museums now under construction in Baiheliang, China59 and in the eastern harbor of Alexandria, Egypt.60

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

72

The Florida Keys National Marine Sanctuary Shipwreck Trail comprises nine wrecks, including (a) City of Washington, originally a two-masted passenger transport operating between New York, Cuba, and Mexico. The vessel was refitted with a steam engine in 1889 and was moored close by the USS Maine when it exploded in Havana Harbor in 1898. During the resultant Spanish-American War, City of Washington served as a troop transport ship, returning to the carriage trade in post-war years until retirement. In 1911, the ship was converted to a coal barge. The wreck lies in 25 feet of water on Elbow Reef, off Key Largo. For more on City of Washington, see http://floridakeys.noaa.gov/sanctuary _resources/shipwreck_trail/washington.html; (b) Benwood, which lies in 25 to 45 feet of water near French Reef and Dixie Shoals, the result of a collision with Robert C. Tuttle in 1942. Originally built in England in 1910 the 360-foot long vessel was registered as a merchant freighter and was carrying a cargo of phosphate from Tampa, Florida to Norfolk, Virginia, when it sank. For more on Benwood, see http://floridakeys.noaa.gov/sanctuary_resources/shipwreck_trail/benwood.html; (c) Duane, a 327-foot long U.S. Coast Guard Cutter decommissioned in 1985 as the oldest active U.S. military vessel. It is located in 120 feet of water off Key Largo. Duane was built in 1936 in Philadelphia and was a Treasury Class cutter named for William J. Duane, Secretary of the Treasury under U.S. President Andrew Jackson. For more on Duane, see http://floridakeys.noaa.gov/sanctuary_resources/shipwrecktrail/ duane.html; (d) Eagle – formerly Raila Dan – is a Dutch freighter built in 1962 that was broken in two by Hurricane George in 1998 and came to rest in 110 feet of water off Lower Matecumbe Key. For more on Eagle, see http://floridakeys.noaa.gov/sanctuary_resources/shipwreck_trail/eagle.html; (e) San Pedro, a 287-ton Dutch-built ship that carried Mexican silver and Chinese porcelain as part of the 1733 Spanish treasure fleet. It sank during a hurricane in the Straits of Florida and now sits in 18 feet of water near Indian Key. For more on San Pedro, see http://floridakeys .noaa.gov/sanctuary _resources /shipwreck_trail/san_pedro.html; (f) a wreck suspected of being Adelaide Baker, – also known as Conrad. This three-masted, iron-rigged wooden-hulled bark is located in 20 feet of water off Duck Key. The remains are scattered over one quarter square mile. For more on Adelaide Baker, see http://floridakeys.noaa.gov/sanctuary_resources/shipwreck_trail/baker.html; (g) Thunderbolt was built during the Second World War to position and tend coastal minefields for the US Army Coast Artillery Corps. The hull is 189 feet in length and sits in 120 feet of water four miles south of Marathon Key. For more on Thunderbolt, see http://floridakeys.noaa.gov/sanctuary_resources/ shipwreck_trail/tbolt.html; (h) a wreck suspected of being North America, measuring 112 feet long by 35 feet wide, is located in 14 feet of water north of Delta Shoals. North America was a three-masted square rigger built in Bath, Maine in 1833. It sank in 1842 en route from New York to Mobile, Alabama. For more on North America, see http://floridakeys.noaa.gov/sanctuary_resources/shipwreck_trail/n_america.html; (i) Amesbury, also known as Alexander‘s wreck, sank while being towed and now lies in 25 feet of water off Key West. It was built as a U.S. Naval Destroyer Escort in 1943 and was later converted to a High Speed Transport. For more on Amesbury, see http://floridakeys.noaa.gov/sanctuary_resources/ shipwreck_trail/ amesbury.html. For additional information on the Florida Keys National Marine Sanctuary Shipwreck Trail, see http://floridakeys.noaa.gov/sanctuary_ resources/shipwreck_ trail/. 57 The wreck of Kronprins Gustav Adolf, located off the coast of Helsinki, Finland, was declared a historical underwater park in 2000. 58 The frigate Wellington sank on 13 November 2005 off Island Bay, New Zealand. For more information and photos, see http://www.divewreck.co.nz/News2.php. 59 The archaeological site at Baiheliang, China lies beneath the Three Gorges Dam and contains ―some of the world‘s oldest hydrological inscriptions,‖ that, according to the website (supra note 54) are contained within a ―stone ridge is 1,600 meters long and 15 meters wide.‖ 60 An international scientific advisory committee is presently examining the feasibility of an underwater museum at the eastern harbor of Alexandria, Egypt that will allow access to the Ptolemaic palace, the submerged cities of Canopus and Herakleion, as well as the Pharos lighthouse.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

50

Jerome Lynn Hall

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Who Will Speak for Heritage? In his article, ―The World's Worst Investment,‖ Peter Throckmorton acknowledges the unprecedented assault on antiquity by an industry better financed and larger in scale than any in history.61 But so as not to eclipse the light on the heritage horizon, Throckmorton also concedes that beyond doubt, when States Parties choose to deal responsibly with UCH, they stand to garner far more revenue through sustained tourism than through negotiations with treasure hunters.62 George Bass also speaks for heritage. His seminal work at Cape Gelidonya, Turkey essentially defined the discipline of underwater archaeology. Subsequent projects under his direction at Yassi Ada, Serçe Liman, and Uluburun, Turkey (among numerous others) have continued to set standards for archaeological excavations underwater, and his stated goal of selective and purposeful extraction offers tremendous protection of UCH And perhaps UCH‘s greatest ally is Ole Varmer, attorney-advisor in the office of International Law at the National Oceanic and Atmospheric Administration (NOAA), who has made the valiant argument that most courts, when dealing with the law of salvage, fail to 63 require scientific evidence that a shipwreck is better off being salvaged than left alone. In such instances, the assumption that wrecks are in peril due to supposed deterioration is, according to Varmer, not necessarily true. As an alternative, he suggests that courts should presume wrecks are better off left in situ and that the burden of proof should be on salvors to 64 present the necessary scientific evidence that excavation is the best option. These are but a few examples of community leaders – one, an adventurer who touts the economic benefits of cultural tourism over treasure hunting; the other, an archaeologist who establishes strict criteria for selective excavation; another, an attorney who advocates in situ preservation – who through their illustrious careers never shied from the challenges of protecting cultural resources. Their elegiac pleas for the security and sustainability of heritage will resound for years to come. But the question remains, ―who, in this next generation, will speak for heritage?‖

61

Throckmorton, supra note 42. Throckmorton, supra note 42. 63 Varmer, O. 1999. The Case Against the ‗Salvage‘ of the Cultural Heritage. Journal of Maritime Law and Commerce, Volume 30, pages 279-293. 64 See Varmer, O. Heritage Resources Law: Protecting the Archeological and Cultural Environment (Wiley, 1999) and author of numerous articles on cultural heritage law, including Varmer, O. 1999. The Case Against the ‗Salvage‘ of the Cultural Heritage. Journal of Maritime Law and Commerce, Volume 30, pages 279-293. For further reading, see Varmer, O. 2000. Legal Protection of the Underwater Cultural Heritage: National and International Perspectives (Kluwer); Varmer, O. 2006. The Protection of Underwater Cultural Heritage: National Perspectives in Light of the UNESCO Convention 2001 (Nijhoff); and Varmer, O. 2006. RMS Titanic. In: Grenier, R. D. Nutley, and I. Cochran. 2006. Underwater Cultural Heritage at Risk: Managing Natural and Human Impacts, pages 14-16. UNESCO/ICOMOS. 62

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Things, Inc.: A Case for In Situ Application

51

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Conclusion There are many benefits to in situ preservation of cultural heritage. Not only does it shield UCH from exclusionary privatization, it provides for continued assessment by qualified individuals and opens avenues for sustainable cooperative ventures and multiple–use alliances. It promotes public education, creates opportunities for industry sponsorships, and protects heritage while awaiting future applications of non-invasive technologies. It is the archaeological equivalent of the medical mandate commonly referred to as the Hippocratic Oath, a physician‘s commitment to consider options, uphold ethical standards when treatment is needed, and ―to do no harm‖ when intervention is necessary. 65 In sum, in situ preservation, though threatened by a host of physical, environmental, legal, cultural, and commercial processes is a policy with which we may live; and it is the reason that UNESCO declared it the preferred option for activities directed at UCH: because it makes sense. Clearly, in situ application has its challenges. Laws must be strengthened and, in many cases, expanded geographically. More people need to become involved or increase their participation in protecting heritage. Fortunately, there are practical and simple ways in which these goals may be attained: by revoking financial assistance to media that betray public trust through promotion of the exclusive privatization of cultural heritage; by seizing ―teachable moments‖ at schools and universities; by becoming visible and vocal presences at local, regional, national, and international hearings on cultural heritage; by persuading Congress to adopt legislation prohibiting looting and unwanted salvage; by convincing governments of non-signatory nations (including the U.S.) to ratify the Convention; by supporting organizations that promote archaeology; and, lastly, by refusing to entertain the charade that non-archaeologists – whether treasure hunters, media celebrities, or less-than-qualified academics – practice ―archaeology.‖66 Our stories are valuable but they don‘t come with price tags; and though they are encapsulated by material culture, they are also sheathed in questions: do we really want our collective histories gathered, analyzed, and interpreted by the most charismatic capitalist with the wealthiest board of directors? Should it be left to under-educated, risk-taking, entrepreneurs to decide what elements of cultural heritage trickle down to us after investors are apportioned what they feel entitled to keep? Must heritage belong only to those privileged few obsessed with the economic investment value of ―things;‖ history, for sale, to the highest bidder? The answers to these questions are crucial, and the consequences of our careless responses are dire. In the final pages of Krakauer‘s narrative, McCandless‘s parents – Walt and Billie – make a pilgrimage to the faded blue-and-white Fairbanks City Transit System bus where their son died: ―Billie is the first to enter the bus. Walt returns from the stream to find her sitting on the mattress where Chris died, taking in the vehicle‘s shabby interior. For a long time she gazes  (epi dhlhsei de kai adikihi eirxein, or ―to do no harm‖). See the National Library of Medicine‘s electronic page titled ―Greek Medicine‖ at http://www.nlm.nih.gov/ hmd/greek/greek_oath.html. 66 Hall, supra note 30. 65

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

52

Jerome Lynn Hall silently at her son‘s boots under the stove, his handwriting on the walls, his toothbrush. But today there are no tears. Picking through the clutter on the table, she bends to examine a spoon with a distinctive floral pattern on the handle. ‗Walt, look at this,‘ she says. ‗This is the silverware we had in the Annandale house.‘‖ 67

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

A simple motif etched in silver conjures memories of home and family. A spoon, a tooth brush, a pair of boots bespeak more than simply their material forms. Like words in a sentence, each is a critical component in understanding a story; remove one or all and the reader is left to fill in the gaps, all the while wondering if her or his substitutions are correct ones. Without these important linkages, the reader begs to comprehend what that sentence means, or to discern its relevance to the paragraph, the page, the chapter, or even the narrative itself. But someone, it seems, felt entitled to a piece of that story, which is why it is so egregious and Mr. Penn finds it so reprehensible that McCandless‘s boots were taken. Though it may not have been an illegal act, it was certainly an unprincipled one. How we view ―things‖ is a resoundingly complex issue, deeply cultural and profoundly consequential. Sometimes, the greatest impact we may have on the future of our collective cultural histories is to ensure that we have little-to-no impact at all. Things in their places is a notion that many – if not most – of us learned in our childhood years. My own father taught me early on that resources – whether natural or cultural – are for us all. ―May I take this home?‖ I would ask, my small fingers rubbing a chiseled arrow head or probing a half-opened pine cone. ―What if everyone took one?‖ came his all-too-predictable reply. ―Then there‘d be nothing left for any of us to enjoy.‖ To my five-year-old mind, his reasoning was flawless. It still is, five decades later.

67

Krakauer, supra note 2, page 202.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 3

INNOVATIVE TOOLS FOR PREVENTING MARINE POLLUTION FROM SHIPS Griselda Capaldo ABSTRACT

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

This short commentary aims to provide a general background and view on the environmental impact caused by maritime transport on oceans, focusing our attention on the pollution caused by crude oil leaked into them. Based on worldwide trends and statistics, the report also provides a range of innovative ideas to improve the applicability of environmental conventions to substandard ships that menaces the marine preservation.

The protection of ocean environment has evolved from the early treatment of pollution as an appendix of maritime safety to the current engagement with prevention and control of marine pollution from ships. Although the first step in preventing marine pollution from ships was done in 1992 through the British Oil in Navigable Waters, which prohibited the discharge of oil and oily mixtures within the United Kingdom territorial waters, the concerns of international shipping community to strengthen their compromise with safety and environmental protection can be traced as of 1967 onwards, when the Torrey Canyon disaster took place and maritime shipping sector was visualized as source of marine pollution and consequently liable for compensation. Since then, a thick variety of international treaties dealing with this topic were negotiated by States under the auspices of the IMO as a specialized agency of the United Nations. That organization has played a key role in enforcing worldwide obligations and standards since shipping is –together with aviation- the most international mode of transport in the world. This feature may obviously be source of conflict of law rules, which can be addressed by applying specific treaties or, in most cases, through national law. Ships, in fact, are moving constantly between different countries and jurisdictions, and very often ship-owners, operators, officers and crew, charterers, insurers and the classification

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

54

Griselda Capaldo

society not only belong to different nationalities but frequently none of these is from the country whose flag the ship flies. This situation, close connected with sub-standard ships flying flags of convenience (FOCs),1 menaces the implementation and concrete enforcement of those maritime conventions whose main goal is the environmental protection of oceans. Statistically speaking, about 6,000 oil tankers carry 1.5 billion tons of crude oil around the world yearly. On average, 15 major accidents as well as 45 smaller ones occur per year. For example, between 1970 and 2008 there have been 1,305 smaller spills (from 7 to 700 tonnes) and 454 large ones (over 700 tonnes), and as a result of such tanker accidents or incidents the total amount of oil spilt is estimated in 5,652,000 tonnes along the last 28 years. The Mediterranean Sea records more than 100,000 illegal and routine oil discharges from ships every year, namely, up to 275 daily unlawful dumps. Such illegal practices represent three times the amount of black tides caused by spills and eight times the amount of fuel discharged by ―Prestige‖ into de Spanish and French coast in November 2002. Statistics also demonstrate that: (1) in most of cases the spills from tankers are the result of routine operations, such as loading, discharging and bunkering; (2) the spills normally occur in ports or at oil terminals; (3) to a greater degree such operational spills are small (less than 7 tonnes in 91% of cases); (4) large spills are caused by collisions and groundings (84% of cases). To sum up, although it is true that, in comparison with other means of transport the maritime shipping is the one that pollute the environment to a lesser degree, its environmental impact is also substantial not only due to the sheer size of the sector,2 but also due to the fact that the tanker industry carries two third of the total amount of oil transported annually.3

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

WHAT KIND OF LEGAL RESPONSES ARE IN FORCE TO DEAL WITH THE PROBLEM? A thick array of international treaties addresses this complex topic. Among those ruling liability issues can be quoted the 1969 International Convention on Civil Liability for Oil Pollution Damage (1969 CLC), and the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971 Fund Convention). Both conventions were amended in 1992 mainly to provide higher limitation figures (1992 CLC and 1992 Fund). Such limits were increased again in 2000 and in 2003, in the last case by negotiating the International Supplementary Fund for Compensation for Oil Pollution Damage. Additionally, a high number of shipowners who are members of the International Group of P&I Clubs later agreed on two voluntary compensation provisions, the Small Tanker Oil Pollution Indemnification Agreement (STOPIA), and the Tanker Oil Pollution Indemnification Agreement (TOPIA). Finally, the 2001 International Convention on Civil Liability for Bunker Oil Pollution Damage regulates damage caused by spills of oil, when carried as fuel in ships' bunkers. 1

A flag of convenience ship is one that flies the flag of a country other than the country of ownership. BOON, Bart (2007). Report on Maritime Transport and the Environment for Latin America. Santiago de Chile, UNECLAC, Serie 127. 3 Oil Tanker Spill Statistics: 2008. (2009) ITOPF, London. 2

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Innovative Tools for Preventing Marine Pollution from Ships

55

From the preventive point of view, the 1973/1978 Convention for the Prevention of Pollution from Ships and it six Annexes (MARPOL 73/78) play a key role in developing proper technical standards and practices to avoid marine pollution from maritime transport. The same preventive pattern is followed by 13 Regional Seas Programmes (they cover the Red, Baltic, Mediterranean, Black, and Caribbean Seas, for just quoting some of them); the 1974 International Convention for the Safety of Life at Sea (1974 SOLAS) and its 1978 and 1988 Protocols; the 1990 International Convention on Oil Pollution Preparedness, Response and Co-operation (1990 OPRC); and the 1969 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (1969 Intervention), whose 1973 Protocol extended the Convention to cover substances other than oil. Currently, 121 countries are members of the 1992 CLC representing 96.39 per cent of the world tonnage; 104 states are parties of the 1992 Fund and only 24 are members of the 2003 Fund, representing 94.17 and 19.87 per cent of the world tonnage, respectively. The acceptance of MARPOL convention (Annex I)4 is even higher, with 149 states representing the 99.01 per cent of the world tonnage. The 1974 SOLAS is in force among 159 States which represents 99.04 percent of world tonnage. 98 States are parties of the OPRC representing the 67.29 per cent and, finally, 86 countries are members of the 1969 Intervention with 74.40 per cent of the world tonnage. Nevertheless, and despite the high acceptance of the treaties, the audit series conducted during 2006 and 2007 by the Sub-Committee on Flag State Implementation (FSI) within the framework of the Voluntary IMO Member State Audit Scheme have shown that: 

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

 



300 incidental spillages up to 50 tonnes or more were reported (in most cases, the type of substance spilled was oil); 48 cases of alleged discharge violations were reported (in most cases, oil); 1,053 ships were detained in port or were denied entry during the Port State Control process in 2006. Namely, 2 per cent of those 51,589 ships boarded for control that year; and 67 ships were reported as having no International Oil Pollution Prevention Certificate (IOPP) or equivalent; 755 ships were reported to have discrepancies in their IOPP Certificate or equivalent; 129 ships were reported to have no Oil Record Book or equivalent; 2,930 ships were reported to have discrepancies in their Oil Record Book or equivalent; 192 ships lacked required pollution prevention equipment on board; and 2,952 ships were reported with required equipment not functioning;

IMO, in the report mentioned above, declares that ―Although, at 24.6 per cent, the rate of reporting in 2006 was better than in previous years, it still remained low and the SubCommittee urged all Parties to MARPOL to submit mandatory reports.‖5In other words, it reveals that –to some extent- the set of international treaties addressing oil marine pollution from ships are not as effective as they should be and that it is necessary to implement other measures to strengthen their effectiveness.

4 5

Annex I is about the Prevention of Pollution by Oil. IMO NEWS, Number 3, Set 2008, London, pp. 15-16.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

56

Griselda Capaldo

Despite the fact that there is a rich collection of international treaties controlling the marine pollution from oil tankers, it is a ludicrous situation that coastal areas and oceans are still under threat. Therefore, the lack of legislation doesn‘t hamper the control of undesirable activities as much as does the lack of law enforcement. There is no doubt that IMO conventions are applicable by Contracting States on their own ships (ships flying their flags), but it is also evident that States have limited powers on the ships of other countries. There is also no doubt that most of sub-standard ships flied FOCs for reducing operating costs or for avoiding government regulations, many of them stemming from environmental obligations (i.g., Antigua and Barbuda, Bahamas, Cambodia, Cyprus, Liberia, Marshall Island, Panama, etc). Then, how can be improved the applicability of those treaties to sub-standard ships? A catalogue of such additional steps may consist in: 



Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.





strengthening the erga ommes feature of those international conventions dealing with preventive measures and compensation arising from oil marine pollution from ships. To the author‘s point of view the erga omnes opposability will broaden the group of States bound by such treaties obligations. Its immediate strategic effect is to assure their observance in global commons and those areas where none State have jurisdiction or sovereignty, and also to take appropriate countermeasures in response to serious erga omnes breaches; carrying out periodical Assessment of law enforcement to outline responses that are likely to overcome such legal ―misdesign‖ and consequently to deal with the problem of ―lack of or insufficient law enforcement‖;6 adding other relevant Conventions to the Port State Control policy (PSC). With the main purpose of eradicating sub-standard shipping practices and protecting the marine environment, Port States are entitled to control foreign ships visiting their own ports to ensure that deficiencies are rectified before leaving. The effectiveness of this useful preventive tool largely depends on the number and sort of international duties controlled at local ports. However, a comparison among the current nine PSC regional systems demonstrates that only eight Conventions among the more relevant fifteen ones are implemented by Port States; introducing differentiated port dues based on the environmental performance of ships. This goal could be reached through the Green Award Flag in order to limit costs of implementation and control. The Green Award Flag7 is an initiative of the Dutch Ministry of Transport –establishes as of 1994- that offers incentives for environmentally responsible shipping. Candidates to apply for are those ship-owners that adhere to high standards in the field of quality, safety, and environmental

6

CAPALDO, Griselda (2006). Legal and Jurisprudential Trends on the Prevention of Marine Pollution from LandBased Sources. In Griselda Capaldo Editor, Sinergias ambientales entre las aguas continentales y las marinas, (pp. 169-180). Buenos Aires. Mare-Magnum (WCS-CONICET) Publishers. CAPALDO, Griselda (2008) General Guidance for Protecting Marine Environment from Land-based Activities. Buenos Aires: MNEMOSYNE Ed. Book also available at www.sea-sky.org/ss_esp/mare-magnum.htm 7 See www.greenaward.org. Since 1 January 2000 the organization is completely independent.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Innovative Tools for Preventing Marine Pollution from Ships

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.



57

protection. The Certificate is valid for 3 years and with the Award, they receive beneficial treatment, such as a reduction in port fees or dues rate at around 50 ports around the world and discounts in insurance contracts;8 employing and admitting in legal actions against shipowners the latest technologist such as Satellite information and images- as evidence before courts in order to punish any law infringement (international or national). In the Singapore Case, for instance, an ERS-SAR satellite image showing near-real-time oil discharge from a tanker was accepted as evidence in a court of law and the responsible party was subsequently pleaded guilty and heavily fined. On the contrary, in many other cases as Courts could not adequately meet the onus probandi, polluters have been given the benefit of doubt (i.e. Bangladesh, India, Pakistan, Maldives, Sri Lanka). In its juridical sense, evidence is a narrow term that includes only the kinds of proof that according to the domestic legal rules may be submitted at a trial. Many States don‘t accept them because they are neither documentary nor expert witness evidence. They would be a sort of sum of both, that is a third kind of burden of persuasion. This ―procedural gap‖ may be filled admitting satellite information / images by legislation and courts as evidence to prosecute wrongdoers.9 The direct benefit is not only to enhance the legal control but mainly to improve law and treaties enforcement.10

8

BOON, Bart: op. quoted in footnote 2, p. 54. CAPALDO, Griselda. Op. cit in footnote 6. 10 See the outcomes of the UNESCO conference on ―New space services for maritime users: the impact of satellite technology on maritime legislation‖, Paris 21-23 February 2005. Available at http://www.esa.int/esaCP/ SEMUIOXEM4E_index_0.html (last visited August 26, 2009) 9

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 4

COAST GUARD: ADMINISTRATIVE LAW JUDGE PROGRAM CONTAINS ELEMENTS DESIGNED TO FOSTER JUDGE'S INDEPENDENCE AND MARINER PROTECTIONS ASSESSED ARE BEING FOLLOWED



United States Government Accountability Office

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

WHY GAO DID THIS STUDY The United States Coast Guard‘s Administrative Law Judge (ALJ) program is designed to, among other things, promote safety at sea while protecting mariners‘ rights and is composed of judges whose duties include presiding over cases involving mariners‘ credentials. If a mariner does not meet certain requirements related to safety and security at sea, Coast Guard investigative officers are to serve the mariner with a complaint that lists the allegation(s) and initiate proceedings that can result in the mariner‘s credential being suspended or revoked. GAO was asked to review elements of the ALJ program and this chapter addresses (1) the extent to which the ALJ program contains elements designed to foster the decisional independence of ALJs, (2) the extent to which the ALJ program includes protections for mariners and whether complaints and decisions include elements required by program regulations, and (3) the outcome of mariner suspension and revocation cases in recent years. To conduct this study, GAO analyzed the laws, regulations, and policies governing the ALJ program. GAO also reviewed all suspension and revocation cases opened and closed from November 10, 2005, through September 30, 2008, to determine outcomes, and further reviewed a representative sample of these cases to determine whether complaints and



This is an edited, reformatted and augmented version of a U. S. Government Accountability Office publication dated June 2009.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

60

United States. Government Accountability Office

decisions included the required elements. GAO supplemented these case reviews with interviews of Coast Guard ALJ program officials.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

WHAT GAO FOUND The Coast Guard‘s ALJ program contains elements designed to foster the decisional independence of its judges by following Office of Personnel Management regulations governing the ALJs‘ hiring and employment. These regulations are designed to ensure that the ALJs are not subject to undue influence from Coast Guard officials. For example, personnel actions against a judge, such as the removal of an ALJ, may only be taken through an independent agency, the Merit Systems Protection Board. The Coast Guard‘s ALJ program contains protections for mariners—such as the right to a hearing and representation—and complaints filed by the Coast Guard and decisions issued by ALJs that we reviewed generally included the required elements. In particular, GAO reviewed cases opened and closed from November 10, 2005, through September 30, 2008, and determined that (1) regulations governing complaints, which are intended to notify mariners of the allegations against them; and (2) regulations requiring ALJs‘ decisions to contain certain elements, such as finding of fact, were being followed. Based on GAO‘s review of the 1,675 suspension and revocation cases opened and closed from November 10, 2005, through September 30, 2008, the majority (62 percent) resulted in settlement agreements; for example, a mariner may give up his or her credential while completing safety training. In these cases, the outcomes were determined through negotiations between the mariners and the Coast Guard. In contrast, 3 percent of the cases resulted in a hearing before an ALJ that ended with a decision and order—a decision presents the ALJ‘s findings, while an order states the sanction, if any, imposed on the mariner. The remaining 36 percent of cases had a variety of outcomes. The disposition of all cases reviewed is shown below. In commenting on a draft of this report, the Coast Guard generally concurred with the findings and believes that the report is both complete and accurate.

Source: GAO analysis of Coast Guard ALJ case outcomes. Note: Percentages do not add to 100 percent due to rounding. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

61

Disposition of the 1,675 Suspension and Revocation Cases Opened and Closed from November 10, 2005, through September 30, 2008

June 12, 2009

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Congressional Requesters The United States Coast Guard, a component within the Department of Homeland Security, is charged with ensuring that over 200,000 licensed merchant mariners are competent and their conduct promotes marine safety, security, and protection of the marine environment. If a mariner does not meet certain requirements related to safety and security at sea, Coast Guard investigative officers serve the mariner with a complaint, initiating proceedings that can result in the suspension or revocation of the mariner‘s credential, which would temporarily or permanently bar the mariner from working in a maritime position that requires that credential. The Coast Guard‘s Administrative Law Judge (ALJ) program is composed of judges who, among other things, preside over cases involving the suspension and revocation of merchant marine credentials.1 An ALJ‘s function as an impartial decision maker is similar to the role of a trial judge presiding over nonjury civil proceedings. ALJs preside in administrative proceedings that provide mariners the right to be represented by counsel and to call and cross-examine witnesses. Coast Guard ALJs review or preside over 600 suspension and revocation adjudications annually.2 Press reports and congressional hearings highlighted concerns about the decisional independence of ALJs in the Coast Guard ALJ system. As a result, Congress asked us to review the Coast Guard‘s ALJ program.3 In particular, this chapter addresses the following questions:  



To what extent does the Coast Guard‘s ALJ Program contain elements designed to foster the decisional independence of ALJs? To what extent does the Coast Guard‘s ALJ Program include protections for mariners, and do complaints and decisions include elements required by the program‘s regulations? What is the disposition of Coast Guard ALJ suspension and revocation cases that were opened and closed from November 10, 2005, through September 30, 2008?

1

Suspension is the temporary forfeiture of a merchant mariner‘s credential, during which time the mariner is prohibited from employment that would require the credential. Revocation is the permanent relinquishment of the merchant mariner‘s credential, although in certain circumstances, a mariner whose credential has been revoked may apply to receive a new credential. 2 In addition to the approximately 600 suspension and revocation cases Coast Guard ALJs hear each year, the ALJs hear other types of cases. From 2006 through 2008, Coast Guard ALJs annually adjudicated between 100 and 200 Transportation Security Administration (TSA) cases, between 55 and 75 National Oceanic and Atmospheric Administration (NOAA) cases, and between 14 and 25 Bureau of Industrial Security cases. 3 Concurrent with our review, the Department of Homeland Security‘s Office of Inspector General is reviewing specific allegations of bias among the Coast Guard ALJs and will be issuing its own report on this issue later this year.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

62

United States. Government Accountability Office

Appendix I discusses the similarities and differences in the structure and regulations governing the Coast Guard‘s ALJ program with those of ALJ programs in three other federal agencies—the U.S. Department of Agriculture (USDA), the U.S. Securities and Exchange Commission (SEC), and the National Transportation Safety Board (NTSB). To address the first and second objectives, we analyzed the statutory provisions of the Administrative Procedure Act (APA), the Office of Personnel Management (OPM) regulations on administrative law judges, and Coast Guard regulations and policies and procedures governing administrative actions. Through reviews of the APA and pertinent OPM and Coast Guard regulations, we determined what structural elements are in place that are designed to foster the ALJs‘ decisional independence. We did not, however, assess whether the structural elements are effective at ensuring the ALJs‘ decisional independence. For the second and third objectives, we initially obtained data from the Coast Guard ALJ program‘s case tracking database. Through discussions with knowledgeable officials from the Coast Guard‘s Office of Administrative Law Judges (OALJ), we determined that the database was not designed to capture all of the information necessary for addressing our specific objectives. In particular, the database was designed to function as a case tracking system and was not intended to capture the type of information that we were seeking. For example, outcomes were not categorized in a way that was consistent with how we intended to report them. As a result, to address these objectives we performed a review of mariners‘ cases that had been completed in recent years. Due to a change in policy regarding the disposition of cases involving convictions for violations of drug laws that was effective from November 10, 2005, we limited the time frame for our case file reviews to those cases that were opened and closed from November 10, 2005, through September 30, 2008. To address the second objective, we selected a random, probability sample of 181 of the 1,675 closed cases to determine the extent to which certain mariner protections identified in Coast Guard procedures were documented in the mariners‘ case files. To address the third objective, we reviewed all 1,675 mariner case files to determine the procedural and sanction-based outcomes associated with the cases.4 To verify the outcomes were recorded accurately, we had a pair of independent analysts subsequently selected a random sample of 198 cases (from the population of 1,675 cases) and recorded their outcomes. Then, this same pair of analysts compared their results with the originally recorded outcomes for the same 198 cases. Based on the results of this comparison, we estimate that the error rate in recording case outcomes for the population (1,675) is 2 percent; and we are 95 percent confident that the actual error rate is less than or equal to 5 percent. Therefore, we conclude that the data generated from our analysis are sufficiently reliable for the purposes of our review. In addition to the case file reviews, we also compared the structure and procedures of the Coast Guard‘s ALJ program to ALJ programs of three other federal agencies. In doing this comparison, we reviewed the regulations governing each of the programs and interviewed officials at each of the agencies. We did not perform a case file review of the other agencies to determine whether their procedures were being followed or evaluate the effectiveness of their adjudicatory processes. Rather, we summarized the structures and procedures and 4

Procedural outcomes include courses of action, such as a negotiated settlement between a mariner and the Coast Guard, or a decision and order issued by an ALJ as a result of a hearing. A decision presents findings of law and fact, while an order states the sanction, if any, imposed against the mariner.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

63

highlighted similarities and differences among the agencies‘ programs to provide context for the Coast Guard‘s ALJ program. We conducted this performance audit from May 2008 to June 2009 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings based on our audit objectives. Appendix II provides additional details about our scope and methodology.

BACKGROUND

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Administrative Adjudications for the Federal Government The Administrative Procedure Act (APA), enacted in 1946, established minimum uniform standards for agency adjudications. Before the enactment of the APA, the functions of investigation, prosecution, and adjudication were generally combined within a federal agency. Because federal agencies often promulgated policy through the adjudication process, agency heads had to control agency policy by overseeing adjudications. However, critics raised concerns that the fairness of the evidentiary fact-finding associated with adjudications may be jeopardized by the policy priorities of the agency head. The APA served to separate the fact-finding process and policy-making by establishing the position of the ALJ, which was to be insulated from undue agency influence and designed to oversee the fact-finding process. Specifically, the APA includes, among other things, requirements for ALJ appointment, pay, and tenure, as well as procedural requirements for adjudications over which ALJs preside, such as requirements related to evidence. At the same time, because ALJ decisions are subject to review within the agency, this process allows the agency head to maintain control over agency policy. The APA has been implemented through OPM and agency-level regulations. Agencies that employ ALJs operate according to OPM regulations that govern the appointment, compensation, and removal of all ALJs in the federal government. Furthermore, each agency that conducts adjudications under the APA also has its own regulations or rules of practice, based on the APA, that govern its proceedings. According to OPM‘s Central Personnel Data File, as of March, 2008, 30 federal agencies employed ALJs. The purpose and scope of the administrative proceedings vary greatly among agencies. For example, the Social Security Administration adjudicates non-adversarial cases involving disputes about individual disability claims, the National Labor Relations Board adjudicates cases involving allegations of unfair labor practices, and the Environmental Protection Agency adjudicates cases involving the suspension and revocation of facility permits and violations of environmental regulations. Several of the federal agencies that employ ALJs, including the Coast Guard, employ ALJs who adjudicate cases involving the suspension and revocation of credentials that are necessary for employment in a particular field. For example, USDA employs ALJs who hear cases involving individuals employed by firms that buy and sell perishable agricultural commodities and dealers and exhibitors of animals, among other things. The Securities and

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

64

United States. Government Accountability Office

Exchange Commission‘s (SEC) ALJs handle cases involving individuals employed by broker-dealers and investment advisers.5 NTSB hears cases involving airmen, which include pilots, flight instructors, air traffic control-tower operators, and mechanics, among others. For more information about these agencies‘ ALJ programs, see appendix I.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Coast Guard ALJ Program The Coast Guard issues credentials that permit merchant mariners to engage in commerce at sea. There are several types of credentials that a mariner may need to be employed on a vessel. Mariners must meet certain requirements to obtain each type of credential, as well as ongoing requirements to continue operating under it. Merchant mariner documents are required for mariners that serve on merchant vessels of at least 100 gross tons, with some exceptions, and serve as certificates of identification and qualification. Licenses are required for officers, and certificates of registry are issued to medical personnel and pursers.6 Standards of Training, Certification, and Watchkeeping for Seafarers endorsements are issued to mariners who hold another merchant mariner credential and who meet international standards and serve aboard vessels to which the standards apply.7 The purpose of suspension and revocation proceedings is to promote safety at sea. If a mariner does not meet certain safety and security requirements, the Coast Guard may initiate proceedings to suspend or revoke the mariner‘s credential. Federal law establishes circumstances in which the Coast Guard may, or must, suspend or revoke a mariner‘s credential. For example, the law provides that a credential may be suspended or revoked if the holder is convicted of certain driving offenses or poses a threat to the safety or security of a vessel or the marine environment.8 The law also provides that a credential must be suspended or revoked if it is shown at a hearing that the mariner has been convicted of violating a dangerous drug law within the prior 10 years and that a credential must be revoked if it is shown at a hearing that the mariner has been a user of, or addicted to, a dangerous drug, unless the mariner provides satisfactory proof that he or she is cured.9 The Coast Guard has issued regulations implementing the law, including that the Coast Guard may initiate an investigation when it appears that there are reasonable grounds to believe that a merchant mariner may have (1) committed an act of incompetence, misconduct, or negligence while acting under the authority of the credential; (2) violated any law or regulation intended to promote marine safety or to protect the navigable waters while acting 5

Broker-dealers are entities engaged in buying and selling securities, either for their own accounts or for the accounts of others. 6 A purser is generally responsible for general administration and money-related tasks on a vessel. 7 On March 16, 2009, the Coast Guard issued a rule consolidating the four mariner credentialing documents into one credential, the Merchant Mariner Credential, effective April 15, 2009. 74 Fed. Reg. 11,196 (Mar. 16, 2009). 8 46 U.S.C. § 7703. 9 46 U.S.C. § 7704. Decisions of the Commandant on appeal have established precedent regarding the requirements of a settlement agreement to ensure that the mariner has been cured. Settlement agreements must, for example, require the successful completion of a drug rehabilitation program followed by a complete non-association with drugs for a minimum of 1 year, which includes participation in a drug abuse monitoring program. See Coast Guard v. Sweeney, Appeal No. 2535 (Feb. 18, 1992).

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

65

under the authority of a credential; or (3) been convicted of a dangerous drug law violation or been a user of, or addicted to, a dangerous drug.10 An example of a case that demonstrates the importance of safety at sea is the case of the Exxon Valdez. Specifically, in March 1989, tank vessel Exxon Valdez struck Bligh Reef in Alaska; what followed was the largest oil spill in U.S. history. According to ExxonMobil, the company spent $2.2 billion on cleanup. Finding that the master of the vessel had consumed alcohol within 4 hours of performing scheduled duties and had left the bridge of the ship before the accident, the Coast Guard ALJ suspended the master‘s license for 9 months, with an additional 3 months suspension if further violations of law governing his credential were proved. Figure 1 below shows photographs of the Exxon Valdez and the aftermath of its oil spill.

As of May 2009, the Coast Guard employs six ALJs; one Chief ALJ and five field ALJs. The Chief ALJ is located in Baltimore, Maryland. Field positions for ALJs are located in Alameda, California; New Orleans, Louisiana; New York, New York; Houston, Texas; Norfolk, Virginia; and Seattle, Washington (the Seattle position is vacant as of April 2009).11 Coast Guard ALJs are assigned cases by the Chief ALJ, who reports to the Commandant of the Coast Guard. Cases are assigned to ALJs on a rotational basis, unless the case is contested and may lead to a hearing. Under those circumstances, the case is assigned to an ALJ based on geographic proximity to the mariner. The Coast Guard ALJ Docketing Center (located in Baltimore, Maryland), is the centralized office that handles the administrative duties related to suspension and revocation cases.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Coast Guard Administrative Proceedings If a Coast Guard investigating officer determines that a suspension and revocation proceeding is appropriate, the officer serves a complaint on the mariner, which outlines the allegations against him or her. After the investigating officer has served the complaint, but before the mariner has taken any action, the officer may withdraw the complaint without any action by the ALJ if, for example, the officer is unable to locate the mariner or if he or she determines that there is not sufficient evidence to pursue the case. There are several actions that a mariner can take in response to a complaint. These actions include (1) not responding to the complaint (default), (2) admitting all the allegations (admission), (3) denying some or all of the allegations (denial and hearing), (4) entering into a settlement agreement (settlement agreement), or (5) voluntarily surrendering his or her credential rather than appearing at a hearing (voluntary surrender). In addition to these mariner actions, the Coast Guard can temporarily suspend a mariner‘s credential without a hearing (temporary suspension). Further details on each of these actions are addressed below.

Default If the mariner does not respond to a complaint, the ALJ may issue a default order, which is considered an admission of the facts alleged in the complaint and a waiver of the right to a 10 11

46 C.F.R. § 5.101(a). According to Coast Guard ALJ officials, an ALJ accepted a position to be assigned to the Houston sector, effective May 2009.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

66

United States. Government Accountability Office

hearing on those facts.12 Any time after a mariner has been found in default, the mariner may present good cause, such as evidence of being at sea, to set aside the default order. If the mariner does not submit an answer and the investigative officer does not file a motion for default within 180 days after the expiration of the answer period, the docketing center will administratively withdraw the complaint.

Admission The mariner may file an answer admitting all of the allegations in the complaint, and the ALJ will issue an appropriate admissions order. For example, if the Coast Guard filed a complaint alleging that a mariner was negligent and proposed a 6-month suspension and the mariner admitted the allegation, the ALJ would then review the complaint and answer and, if proper, issue an order suspending the mariner‘s credential for 6 months.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Denial and Hearing If the mariner wishes to deny any allegation, the mariner must file an answer to the complaint denying the allegation(s), and the mariner may request a hearing. At the hearing, the mariner (or his or her legal representative) and the investigative officer may present evidence in defense or support of the case and may conduct cross-examination of any evidence presented.13 The officer bears the burden of proving the case by a preponderance of the evidence; that is, the officer must prove that the allegations are more likely to be true than not.14 If the mariner does not appear at a conference or a hearing and does not show good cause for failing to appear, the ALJ may issue a default order.15 After the hearing, the ALJ issues a decision and order,16 which must include the sanction, if any, imposed on the mariner.17

Source: U.S. Coast Guard. Figure 1. Photographs Showing the Exxon Valdez and the Damage Caused as a Result of the Captain‘s Failure to Abide by Safety Standards . 12

33 C.F.R. § 20.310. 33 C.F.R. § 20.801. 14 33 C.F.R. § 20.701. 15 33 C.F.R. § 20.310(a). 16 A decision presents findings of law and fact, while an order states the sanction, if any, imposed against the mariner. 17 33 C.F.R. § 20.902. 13

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

67

Settlement Agreement If the mariner wishes to enter into a settlement agreement with the Coast Guard, the parties may submit a proposed settlement to the ALJ, who must approve the agreement.18 The settlement agreement may provide, for example, that in exchange for taking a maritime safety course, the proposed sanction of a 6-month suspension may be reduced to a 3-month suspension. Voluntary Surrender The mariner may also voluntarily surrender his credential in preference to appearing at a hearing. The mariner must sign a written statement affirming that the surrender is made voluntarily in preference to appearing at a hearing, that all rights to the credential are permanently relinquished, and that any rights to a hearing are waived.19 Temporary Suspension In certain circumstances, such as when a mariner performs a safety-sensitive function on a vessel and there is probable cause to believe that the mariner has violated a law or regulation regarding the use of alcohol or a dangerous drug,20 the Coast Guard may temporarily seize the mariner‘s credential without a hearing, so long as the ALJ holds a hearing within 30 days and issues a decision 45 days or less after the temporary suspension.21 According to Coast Guard officials, a majority of cases that resulted in temporary suspensions were drug and alcohol-related cases.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Outcomes of Coast Guard ALJ Cases Each mariner case has two types of outcomes, procedural and sanction. Procedural outcomes include courses of action, such as a negotiated settlement between a mariner and the Coast Guard, or a decision and order issued by an ALJ as a result of a hearing. The other types of outcomes—sanction outcomes—are the actions taken against the mariner‘s credential and include penalties, such as suspension or revocation. Thus, for example, the outcome of a case may be that a mariner could enter into a negotiated settlement (procedural outcome) in which he or she agrees to a suspension of his or her credentials for a specified period of time (sanction outcome).

18

33 C.F.R. § 20.502. 46 C.F.R. § 5.203. While a voluntary surrender is a permanent relinquishment of credentials, a mariner may also voluntarily deposit his or her credential in any case where there is evidence of mental or physical incompetence. The Coast Guard may accept such a deposit on the basis of a written agreement that specifies the conditions upon which the Coast Guard will return the credential. 46 C.F.R. § 5.201. 20 Other circumstances in which the Coast Guard may temporarily seize a credential before holding a hearing include when a mariner performs a safety-sensitive function on a vessel and there is probable cause to believe that the mariner has been convicted of an offense that would prevent the issuance or renewal of the credential or, within 3 years prior to the start of the proceeding, has been convicted of certain driving-related offenses. 21 33 C.F.R. §§ 20.1201, 20.1207, 20.1208. 19

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

68

United States. Government Accountability Office

Procedures for Appeals Once a Coast Guard ALJ has decided a case, either a mariner or an investigating officer may appeal the ALJ‘s decision to the Commandant of the Coast Guard.22 The Commandant reviews the record on appeal to determine whether the ALJ committed an error in the proceedings and whether the ALJ‘s decision should be affirmed, modified, reversed, or should be remanded for further proceedings. The Commandant then issues a written decision. If the Commandant affirms an ALJ decision to revoke or suspend a credential, the mariner may then appeal the Commandant‘s decision to NTSB.23 NTSB may affirm the Commandant‘s decision, set aside the Commandant‘s decision and dismiss the case, or set aside the Commandant‘s findings, conclusions, or order and remand the case to the Commandant for further consideration. A mariner or the Commandant may seek judicial review of NTSB‘s decision in an appropriate U.S. court of appeals or the U.S. Court of Appeals for the District of Columbia Circuit.24

THE COAST GUARD’S ALJ PROGRAM CONTAINS ELEMENTS DESIGNED TO FOSTER THE DECISIONAL INDEPENDENCE OF ITS JUDGES

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The structure of the Coast Guard‘s ALJ program contains elements designed to foster the decisional independence of its judges through a series of administrative requirements related to appointment, pay, and tenure that are mandated by the APA and administered by OPM. In addition to regulations implemented by OPM, which govern ALJ programs for the federal government, the Coast Guard has issued additional regulations that govern its administrative proceedings and are designed to ensure judges‘ decisional independence. Both OPM and

22

The parties may appeal the following issues: whether each finding of fact is supported by substantial evidence; whether each conclusion of law accords with applicable law, precedent, and public policy; whether the ALJ abused his or her discretion; and the ALJ‘s denial of a motion for disqualification. 33 C.F.R. § 20.1001. 23 49 U.S.C. § 1153. The grounds for appeal to NTSB are that a finding of a material fact is erroneous; a necessary legal conclusion is without governing precedent or is contrary to law or precedent; a substantial and important question of law, policy, or discretion is involved; or a procedural error that harmed the interests of the respondent has occurred. 49 C.F.R. § 825.15. 24 There have been multiple decisions discussing whether a mariner may seek judicial review of an ALJ decision if he or she does not appeal the ALJ decision to the Commandant and whether a mariner may seek judicial review of the Commandant‘s decision if he or she does not appeal the Commandant‘s decision to NTSB, and the issue continues to be litigated. See Kinneary v. New York, 358 F. Supp. 2d 356 (S.D.N.Y. 2005) (stating that the respondent would not have been able to seek judicial review of the Commandant‘s decision, but rather that judicial review of final agency action would be from an order of NTSB); Blackwell v. United States, 586 F. Supp. 947 (S.D. Fla. 1984) (stating that because the respondent did not file a timely appeal with NTSB, he had failed to exhaust his administrative remedies); but see Dresser v. Ingolia, 2009 WL 139662 (5th Cir. 2009) (suggesting that, based on Coast Guard regulations providing that an ALJ‘s decision becomes final action of the Coast Guard 30 days after the date of its issuance, unless appealed to the Commandant, the ALJ‘s decision would have been final agency action and thus subject to judicial review if the respondent had not appealed the decision to the Commandant); McDonald v. United States, 2005 WL 1571215 (S.D. Tex. 2005) (holding that because the Vice Commandant‘s decision is final agency action, the respondent may seek judicial review of the decision without appealing to NTSB).

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

69

Coast Guard regulations stem from APA provisions, which in part are designed to foster the decisional independence of ALJs.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

OPM Regulations Are Designed to Foster Judges’ Decisional Independence OPM regulations regarding the ALJ appointment processes are designed to ensure that ALJs are hired based on their merits and not for other reasons, such as political views or loyalties to a federal agency, thus fostering decisional independence. For example, OPM recruits and selects ALJs. Although each federal agency, including the Coast Guard, hires its own ALJs, OPM has been exclusively responsible for the initial examination, certification, selection, and determination of the compensation of ALJs for each federal agency that has an ALJ program. Under this process, OPM periodically conducts competitive examinations and uses the results of these examinations to rank applicants for ALJ positions according to their qualifications and skills. Applicants are to be licensed attorneys authorized to practice law in the United States (including the District of Columbia, the Commonwealth of Puerto Rico, or any territorial court). Applicants who meet these minimum qualification standards and pass the examination are then assigned a score and placed on a register of eligible hires. Agencies, including the Coast Guard, then select an ALJ from the top three available candidates, taking into account the location, geographical preference, and veterans‘ preference rules. Additionally, agencies may appoint current or former ALJs from other federal agencies. Once an ALJ is hired by a federal agency, OPM regulations regarding ALJ pay and performance are designed to preserve the ALJ‘s integrity, independence, and insulation from agency influence. For example, OPM regulations state that an agency may not rate the job performance of an ALJ, nor are agencies allowed to grant any monetary or honorary award or incentives to ALJs.25 According to OPM regulations, OPM assigns each ALJ position to one of the three levels of pay (AL-3, AL-2, or AL-1).26 The pay levels are determined based on the Executive Schedule, and advancement through the pay levels is primarily based on time served. These provisions are designed to prevent an agency from exercising influence over a judge by, for example, promising raises or bonuses if the ALJ finds in the agency‘s favor. We reviewed personnel files and verified that all of the Coast Guard ALJs that were serving at the time of our review were hired and paid under OPM regulations.27 OPM regulations regarding ALJ tenure also serve as a protective measure that is designed to ensure decisional independence. Upon appointment, ALJs are given career appointments. As ALJ positions are granted career appointments, measures exist to protect them from being dismissed or removed from office without good cause and a hearing before an independent agency. For example, the APA, as amended, states that an agency may remove, suspend, reduce in level, reduce in pay, or furlough for 30 days or less an ALJ only for good cause and after a hearing before the Merit Systems Protection Board.28 25

5 C.F.R. § 930.206. 5 C.F.R. § 930.205. 27 GAO plans to issue another report regarding ALJ program management, hiring, and performance management later this year. 28 5 U.S.C. § 7521. 26

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

70

United States. Government Accountability Office

Coast Guard Regulations Contain Elements Designed to Foster Decisional Independence In addition to OPM regulations, Coast Guard regulations include provisions designed to foster the decisional independence of the ALJs. For example, Coast Guard regulations state four key requirements to ensure the integrity and independence of its ALJs: (1) ALJs may not engage in ex parte communications;29 (2) ALJs may not be responsible to or subject to the supervision or direction of those investigating for or representing the Coast Guard;30 (3) Coast Guard officers, agents, and employees who investigate for, or represent the Coast Guard in any administrative proceeding, are prohibited from participating or advising in the decision of the ALJ, except as a witness or counsel in the proceeding;31 and (4) ALJs may disqualify themselves if they have a personal bias.32 These four requirements are designed to ensure that ALJs are protected from agency coercion or influence and that all persons related to the case are adequately informed in a fair manner. Additionally, Coast Guard‘s OALJ maintains a separate headquarters office in Baltimore, Maryland and reports directly to the Office of the Commandant.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

COAST GUARD’S ALJ PROGRAM CONTAINS PROTECTIONS FOR MARINERS’ INTERESTS AND COMPLAINTS AND DECISIONS THAT WE REVIEWED GENERALLY INCLUDED THE REQUIRED ELEMENTS The Coast Guard ALJ program contains protections for mariners, and complaints filed by the Coast Guard and decisions issued by Coast Guard ALJs that we reviewed generally included the elements required by the program‘s regulations. Specifically, in reviewing closed cases, we found that regulations governing elements to be included in a complaint filed against a mariner and those required for an ALJ decision were being followed.

Coast Guard’s ALJ Program Contains Procedures for Protecting Mariners’ Interests According to the Coast Guard, it is responsible for ensuring that merchant mariners‘ conduct promotes marine safety and security, among other things, and, as such, its ALJ proceedings are designed to protect the integrity of the credentials rather than to discipline or penalize merchant mariners. The Coast Guard also recognizes that mariners have interests in possessing their credentials, and the ALJ program has procedures that protect the mariners‘ 29

The APA provides that an ALJ may not engage in communications relevant to the merits of the proceeding with interested parties outside of the agency. 5 U.S.C. § 557(d)(1). The APA also provides that an ALJ may not consult a person or party on a fact in issue, unless the ALJ provides notice and opportunity for all parties to participate. 5 U.S.C. § 554(d)(1). 30 33 C.F.R. § 20.206(a). 31 33 C.F.R. § 20.206(b). 32 33 C.F.R. § 20.204.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

71

interests. For example, the ALJ program allows mariners to dispute any allegations at administrative hearings, provides that mariners may be represented by attorneys at the hearings, and allows mariners to appeal ALJs‘ decisions. For a discussion of how the protections provided by the Coast Guard‘s ALJ program compare to those provided by the other ALJ programs that we reviewed (USDA, SEC, and NTSB), see appendix I.

APA Protections Mariners are afforded specific rights in ALJ hearings under the APA.33 For example, under the APA, mariners have the right to    

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.



Submit evidence and argument in response to allegations; Be heard by a judge who is not subject to the supervision of an employee engaged in the investigation or prosecution of the case; Be accompanied, represented, and advised by counsel or other duly qualified representative; Inspect and copy certain, nonprivileged documents obtained or prepared in connection with the administrative proceeding, and to request the issuance of subpoenas; and Submit proposed findings of fact and conclusions of law before a decision is rendered in a particular case.

Coast Guard ALJ Program Protections In addition to the protections afforded mariners under the APA, the Coast Guard has also implemented protections through the regulations that govern its administrative proceedings. For example, a complaint filed by the Coast Guard must contain certain elements, such as facts alleged against the mariner,34 and the decision issued by the ALJ must contain certain elements, such as findings of fact, conclusions of law, and sanctions, if ordered.35 Other protections include the appeals process, expediting hearings, the ability to reopen a case, and issuance of temporary credentials. Coast Guard ALJ Program Appeals Process The Coast Guard ALJ program‘s appeal process is designed to protect the mariners‘ interests. In particular, any party may appeal the ALJ‘s decision to the Commandant of the Coast Guard on any of four issues: (1) whether each finding of fact is supported by substantial evidence; (2) whether each conclusion of law is consistent with applicable law, precedent, and public policy; (3) whether the ALJ abused his or her discretion; or (4) whether the ALJ‘s denial of a motion for disqualification was proper.36 In reviewing the appeal, the Commandant reviews the record to determine whether the ALJ committed an error in the proceedings and whether the Commandant should affirm, modify, or reverse the ALJ‘s 33

5 U.S.C. § 554-557. 33 C.F.R. § 20.307. 35 33 C.F.R. § 20.902(a). 36 33 C.F.R. § 20.1001. A party may request that an ALJ disqualify himself or herself for personal bias or other valid cause. If the ALJ denies the request, the party may appeal that decision to the Commandant. 34

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

72

United States. Government Accountability Office

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

decision or should remand the case for further proceedings, and the Commandant issues a written decision. If the Commandant affirms an ALJ decision to revoke or suspend a credential, the mariner may then appeal the Commandant‘s decision to NTSB.37 The grounds for appeal to NTSB are that a finding of a material fact is erroneous; that a necessary legal conclusion is without governing precedent or is contrary to law or precedent; that a substantial and important question of law, policy, or discretion is involved; or that a procedural error that harmed the interests of the mariner has occurred.38 NTSB may affirm the Commandant‘s decision; set aside the Commandant‘s decision and dismiss the case; or set aside the Commandant‘s findings, conclusions, or order and remand the case to the Commandant. A mariner or the Commandant may seek judicial review of NTSB‘s decision in an appropriate U.S. Court of Appeals or the U.S. Court of Appeals for the District of Columbia Circuit.39 According to Coast Guard officials, from November 10, 2005, through September 30, 2008, the Coast Guard Commandant made decisions on 29 appeals filed either by the mariner or the Coast Guard. In 9 instances, the Coast Guard appealed the ALJ decision; in 19 instances, the mariner appealed the ALJ decision, and in 1 case, both the Coast Guard and the mariner appealed the ALJ decision. Of the 9 cases in which the Coast Guard appealed the ALJ decision, the Commandant affirmed the ALJ decision in 6 cases and overturned the ALJ decision in 3 cases.40 Of the 19 cases in which the mariner appealed the ALJ decision, the Commandant affirmed the ALJ decision in 16 cases and overturned the ALJ decision in 3 cases.41 In the case in which both the Coast Guard and the mariner appealed, the Commandant affirmed the ALJ decision. According to the NTSB‘s Office of Administrative Law Judges (OALJ), from November 10, 2005, through September 30, 2008, NTSB decided two appeals of the Commandant‘s decisions. In both cases, NTSB denied the appeals and affirmed the Commandant‘s orders.

Expedited Hearing While mariners generally have a right to a hearing before the suspension or revocation of their credentials, the Coast Guard may suspend or take immediate possession of a mariner‘s credential if the mariner performs a safety-sensitive function on a vessel and there is probable cause to believe the mariner violated law or federal regulations regarding alcohol or dangerous drug use, was convicted of an offense that would preclude issuance of a credential, was convicted of certain driving offenses, or is a security risk.42 Under these specific circumstances, the Coast Guard is to (1) immediately file a complaint with the ALJ Docketing Center, (2) hold an expedited hearing within 30 days of the temporary suspension, and (3) 37

49 U.S.C. § 1133. 49 U.S.C. § 1133. 39 49 U.S.C. § 1153. There have been multiple decisions discussing whether a mariner may seek judicial review of an ALJ decision if he or she does not appeal the ALJ decision to the Commandant and whether a mariner may seek judicial review of the Commandant‘s decision if he or she does not appeal the Commandant‘s decision to NTSB, and the issue continues to be litigated. See note 24 for more information. 40 In each of these three cases, the Commandant overturned the ALJ decision and remanded the case to the ALJ for further proceedings consistent with the Commandant‘s decision. 41 In two of these three cases, the Commandant overturned the ALJ decision and remanded the case to the ALJ for further proceedings. In the third case, the Commandant overturned the ALJ decision and dismissed the case. 42 46 U.S.C § 7702. 38

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

73

issue a decision within 45 days of the temporary suspension. According to Coast Guard officials, from November 10, 2005, through September 30, 2008, there were four cases in which mariners‘ credentials were temporarily suspended. In two cases, the mariner voluntarily surrendered the credential, in one case the mariner and the Coast Guard settled; and in one case, the ALJ issued a decision and order.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Reopening a Case As a further protection, ALJs are permitted to reopen a case if it is believed that a change in fact or law warrants such a reopening or that it is in the public‘s interest to reopen the case in order to take additional evidence. Furthermore, any party may request to reopen a case within 30 days of the closing of the case, and a mariner may also—within 3 years after a suspension and revocation proceeding has resulted in a revocation of a credential—request to reopen the proceeding to modify the order of revocation. Requests of this type must clearly state why the basis for the revocation is no longer valid and how the issuance of a new license, certificate or document is compatible with the requirement of good discipline and safety at sea.43 According to Coast Guard officials, from November 10, 2005, through September 30, 2008, ALJs issued five decisions on motions to reopen cases—ALJs denied motions to reopen in three cases, and granted motions to reopen in two cases. Similarly, if a mariner can show good cause, an ALJ may set aside a finding of default.44 For example, ALJ program officials explained that because mariners are away at sea for extended periods of time, it is not unreasonable that complaints served upon their residences may not have reached them in a timely fashion. Consequently, ALJs are allowed the flexibility to set aside a default to allow the mariner to exercise his or her right to a hearing. According to Coast Guard officials, there were no defaults set aside in our date range. Temporary Credentials Finally, as an added protection, a mariner who has appealed an ALJ decision suspending or revoking his or her credentials may apply for temporary credentials pending a decision on the appeal.45 This application is made either to the ALJ or to the Coast Guard Office of Investigations and Analysis, depending on whether the case has already been transferred to the Coast Guard Chief Counsel. Temporary credentials are valid for 6 months or until the Commandant issues a decision on the appeal. However, if a decision has not been issued when a temporary credential expires, a mariner may request another temporary credential. A mariner who has appealed a decision of the Commandant affirming a suspension or revocation of his or her credential to NTSB is also eligible to apply for a temporary credential.46 These requests must be submitted to the Office of Investigations and Analysis.

43

33 C.F.R. § 20.904(f). 33 C.F.R. § 20.310(e). 45 46 C.F.R. § 5.707(a). A mariner whose credential was revoked as a result of a finding that the mariner was a user of, or addicted, to a dangerous drug or was convicted of a dangerous drug law is not eligible to apply for a temporary credential during the time an appeal to the Commandant or NTSB is pending. 46 C.F.R. §§ 5.707, 5.715. 46 46 C.F.R. § 5.715. 44

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

74

United States. Government Accountability Office

Select Mariner Protections We Assessed Are Being Followed Based on our file reviews, we determined that regulations requiring that certain elements be included in a complaint against a mariner and in an ALJ decision were being followed. While other protections are to be in place, as addressed above, we could not objectively verify that they were followed based on our case file review. Under the ALJ program, Coast Guard regulations state that complaints filed against a mariner are to include the following elements:    

the type of case, the statute(s) or rule(s) allegedly violated, the pertinent facts alleged, and the order of suspension or revocation proposed by the Coast Guard.47

Additionally, the Coast Guard investigative officer, as the filing party of the complaint, is to ensure that the complaint bears a signed certificate of service.48 Just as the complaints filed against mariners are to contain specific elements, decisions rendered by ALJs are to also contain particular elements. After closing the record of the proceeding, Coast Guard regulations state that the ALJs are to prepare a decision that contains the following elements:  

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

 

a finding of fact on each material issue of fact and conclusion of law, as well as the basis for each finding; the disposition of the case, including any appropriate order necessary to achieve that disposition; the date on which the decision will become effective; and a statement of further right to appeal.49

While the ALJ may render a decision orally from the bench, Coast Guard regulations provide that an oral decision is to also state the issues in the case and make clear, on the record, the ALJ‘s findings of fact and conclusions of law. When an ALJ renders an oral decision, the ALJ is to also prepare and serve a written order upon the parties after the conclusion of the hearing. In all cases, the ALJ is required to base the decision upon a consideration of the whole record of the proceedings. We determined that almost all of the case files we reviewed contained the elements required to be included in a complaint against a mariner. Specifically, we analyzed a probability sample of 181 cases to determine the extent to which the case files contained documentation that included the required elements. Based on this sample, we estimate that 

100 percent of the complaints in the case files set forth the type of case;50

47

33 C.F.R. § 20.307(a). 33 C.F.R. § 20.304(c). A certificate of service is a document signed by the investigative officer stating that he or she has served the complaint on the mariner. The officer may serve a complaint by personal service, certified mail with return receipt, or by express courier service with receipt capability. 49 33 C.F.R. § 20.902(a). 48

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…    

75

100 percent of the complaints in the case files set forth the statute(s) or rule(s) allegedly violated; 100 percent of the complaints in the case files set forth the pertinent facts for the alleged violation; 100 percent of the complaints in the case files set forth an order of suspension or revocation proposed by the Coast Guard; and 95 percent of the complaints in the case files contain a completed certificate of service.51

We determined that all cases in which a decision was issued contained the elements required for an ALJ decision. Of the 1,675 cases opened and closed from November 10, 2005, through September 30, 2008, 45 ended with a decision made by an ALJ. Of these 45 cases, 36 cases contained written decisions issued after the hearing, while the remaining 9 cases contained oral decisions rendered at the conclusion of the hearing. Our review of the 36 case files with written decisions showed the following:    

100 percent set forth findings on each material issue of fact and conclusions of law, as well as the basis for each finding; 100 percent set forth the disposition of the case, including the appropriate order; 100 percent provided the date upon which the decision became effective; and 100 percent included a statement of the parties‘ further right to appeal the decision.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

We also reviewed the 9 cases containing oral decisions provided at the conclusion of the hearing and found that all 9 contained a subsequent written order.

MAJORITY OF MARINERS’ CASES RESULTED IN SETTLEMENT AGREEMENTS, WITH RELATIVELY FEW DECIDED BY COAST GUARD JUDGES In terms of procedural outcomes, the majority of cases we reviewed involving the possible suspension or revocation of mariners‘ credentials resulted in negotiated settlement agreements between the mariners and the Coast Guard. For the majority of these cases, the mariners received a stayed revocation in which they agreed to voluntarily relinquish their credentials pending completion of certain conditions—a sanction outcome. In contrast, relatively few cases resulted in a hearing in which a Coast Guard ALJ issued a decision and order. For about half of the cases resulting in a decision and order, the mariners received a sanction of revocation in which they were ordered to permanently forfeit their credentials. 50

For all estimates of 100 percent, we are 95 percent confident that the actual compliance rate is between 98.4 percent and 100 percent. 51 Although 181 certificates of service were accounted for, we identified nine instances in which the certificate of service was not properly completed in that, for example, a box was left unchecked. We are 95 percent confident that the actual compliance rate for case files that contain a completed certificate of service is between 90 percent and 97.6 percent.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

76

United States. Government Accountability Office

The Procedural Outcome for the Majority of Mariners’ Cases Was a Settlement Agreement Based on our review of the procedural outcomes of the 1,675 suspension and revocation cases that were opened and closed from November 10, 2005, through September 30, 2008, we found that 1,035 cases (or 62 percent) resulted in settlement agreements, while 45 cases (3 percent) resulted in decisions and orders by ALJs. The remaining 595 cases (36 percent) resulted in a variety of outcomes. The results or disposition of all 1,675 cases are shown in figure 2.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Source: GAO analysis of Coast Guard ALJ case outcomes. Note: Percentages do not add to 100 due to rounding. Figure 2. Disposition of the 1,675 Suspension and Revocation Cases Opened and Closed from November 10, 2005, through September 30, 2008

Source: GAO analysis of Coast Guard ALJ case outcomes. Figure 3. Sanction Outcomes of the 1,035 Suspension and Revocation Cases That Figure 3: Sanction Outcomes of the 1,035 Suspension and Revocation Cases That Resulted in Settlement Agreements from November 10, 2005, through September 30, 2008

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

77

A logical explanation for the relatively large percentage of settlement agreements is that federal law and Coast Guard regulations require ALJs to revoke credentials in certain cases involving dangerous drug use. Specifically, if after a hearing it is proved that the mariner is a user of, or is addicted to, a dangerous drug, the ALJ is required to revoke the mariner‘s credentials.52 However, in these types of cases, a mariner may enter into a settlement agreement with the Coast Guard that imposes a sanction other than outright revocation. As a result, there is an incentive for mariners to settle in drug use cases.

The Most Common Sanction for Settlement Agreement Cases Was a Stayed Revocation

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Of the 1,035 cases that resulted in settlement agreements, the majority of these cases (68 percent) resulted in a sanction of a stayed revocation, as shown in figure 3. In a stayed revocation, a mariner temporarily relinquishes his or her credential and is required to comply with certain conditions before his or her credential is returned. This sanction may be used in settlement agreement cases where there is proof of dangerous drug use. In such cases, mariners must demonstrate cure from addiction to dangerous drugs by completing a series of requirements laid out in the settlement agreements before their credential can be returned.53 During this time, the mariners cannot work in any position requiring mariner credentials. If the mariners complete the requirements, they are able to get their credentials back; otherwise, the credentials are forfeited. mariner credentials. If the mariners complete the requirements, they are able to get their credentials back; otherwise, the credentials are forfeited.

Source: GAO analysis of Coast Guard ALJ case outcomes. Figure 4. Disposition of the 45 Decision and Order Cases from November 10, 2005, through September 30, 2008 52 53

46 U.S.C. § 7704(c). In drug use cases, although a mariner may enter into a settlement agreement that imposes a sanction less than revocation, the mariner must demonstrate that he or she is cured before his or her credential is reinstated. As noted above, Commandant precedent describes the conditions that are to be included in such a settlement agreement, such as a drug rehabilitation program and a period of non-association with drugs, in order to ensure that the mariner is cured.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

78

United States. Government Accountability Office

The Most Common Sanction Outcome for Decision and Order Cases Was a Revocation Of the 45 cases that resulted in a decision and order by a Coast Guard ALJ, the most common sanction was revocation (49 percent), as shown in figure 4 below. In a revocation, mariners are ordered to permanently forfeit their credentials. Additionally, in 13 percent of the cases, the ALJ did not order a sanction, meaning that the mariners retained their credentials. Further details on the results of our case file reviews, specifically regarding sanctions outcomes, can be found in appendix III.

AGENCY COMMENTS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In May 2009, we requested comments on a draft of this chapter from the Department of Homeland Security and the Coast Guard. The Coast Guard provided technical comments, which we have incorporated into the report, as appropriate. In addition to the technical comments, the Department of Homeland Security and the Coast Guard jointly provided an official letter for inclusion in this report. In the letter, the agencies noted that they generally concur with our findings and believe the report to be both complete and accurate. A copy of this letter can be seen in appendix IV.

Stephen L. Castice Issues ldwell Director, Homeland Security and Ju List of Congressional Requesters The Honorable John D. Rockefeller IV Chairman The Honorable Kay Bailey Hutchison Ranking Member Committee on Commerce, Science and Transportation United States Senate The Honorable Bennie G. Thompson Chairman The Honorable Peter T. King Ranking Member Committee on Homeland Security House of Representatives The Honorable Maria Cantwell

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

79

Chairman The Honorable Olympia J. Snowe Ranking Member Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard Committee on Commerce, Science, and Transportation United States Senate The Honorable Frank R. Lautenberg Chairman Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Committee on Commerce, Science, and Transportation United States Senate The Honorable Frank LoBiondo Ranking Member Subcommittee on Coast Guard and Maritime Transportation Committee on Transportation and Infrastructure House of Representatives The Honorable Steven C. LaTourette House of Representatives

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

APPENDIX I: COMPARISON OF THE STRUCTURE AND PROCEDURES OF ADMINISTRATIVE LAW JUDGE PROGRAMS AT SELECT FEDERAL AGENCIES This appendix describes the structures and procedures of administrative law judge (ALJ) programs in three federal agencies to show how they compare to the Coast Guard‘s ALJ program. ALJs at each of these agencies hear cases involving the suspension and revocation of credentials that are necessary for employment in a particular field. This appendix (1) describes the types of cases that the ALJs at select federal agencies hear, (2) summarizes similarities and differences in the structures and procedures of the ALJ programs at each of the selected agencies, and (3) presents a more detailed description of the procedures involved in adjudications at each agency.

Types of Cases Heard by ALJs in Select Federal Agencies Like the Coast Guard ALJs, ALJs at the U.S. Department of Agriculture (USDA), the Securities and Exchange Commission (SEC), and the National Transportation Safety Board (NTSB) hear cases related to the possible suspension and revocation of credentials required for employment in a particular field. Further details on each of these agency‘s ALJ programs are provided below.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Table 1. Administrative Procedures of the Coast Guard ALJ Program Compared to Three other ALJ Programs in the Federal Government Topic Representation of agency in adjudication Elements of complaint/ order instituting proceedings

Coast Guard Coast Guard Investigating Officer (1) Type of case (2) Relevant statute or rule (3) Pertinent alleged facts (4) Proposed sanction

NTSB FAA Enforcement Division Before issuing order, FAA advises respondent of charges or reasons for action. FAA order is refiled as complaint; no requirements in regulations.

USDA Office of General Counsel (OGC) within USDA Responsible Component (1) Nature of the proceeding (2) Identification of the complainant and respondent (3) Legal authority and jurisdiction under which proceeding is instituted (4) Allegations of fact and provisions of law that form basis for proceeding (5) Nature of the relief sought

Deadline to answer

20 days

20 days

20 days

Default procedures for failure to answer complaint/order initiating proceedings

The agency files motion for default, to which respondent has 20 days to reply. If the respondent fails to reply, the ALJ issues default order.

N/A

Procedure to set aside default order

Any time after the respondent has been found in default, the respondent may present good cause to set aside the default order. The ALJ may grant a request for extension to file a response.

N/A

If the respondent fails to answer complaint, the agency submits proposed decision, with a motion to adopt. The respondent has 20 days to file objections. If no meritorious objection filed, the ALJ grants motion to adopt proposed decision. Within 30 days of the issuance of the adopted decision, the respondent may appeal decision.

Extensions of time

The ALJ may grant an extension of time to file any document for good cause shown. However, no extension of time will be granted for the filing of a document to which a statutory time limit applies.

The ALJ may grant an extension of time to file a document for good cause shown.

SEC SEC Division of Enforcement (1) Nature of hearing (2) Legal authority and jurisdiction under which hearing will be held (3) Matters of fact and law to be considered and determined (4) Nature of any relief or action sought or taken The order instituting proceedings will also specify a period in which the ALJ will file an initial decision, which must be either 120, 210, or 300 days. The Chief ALJ must file a request with the commission for an extension. 20 days, except where a different period is pro-vided by rule or by order If respondent fails to answer complaint, the ALJ may decide the case against the respondent upon a consideration of the record, including the order instituting proceedings.

The respondent may, within a reasonable time after being found in default, request to set aside a default order for good cause. The ALJ may shorten or extend any time limits, for good cause shown, but may not extend more than 21 days unless the ALJ sets forth the reasons that a longer period of time is necessary.

ID=3019985.

Table 1. (Continued) Topic Settlements

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Discovery

Expedited procedure

Coast Guard The ALJ may approve settlement agreement between agency and respondent, ensuring, for example, that the complaint states an offense and that the law permits the settlement. Unless the ALJ otherwise orders, at least 15 days prior to the hearing, each party must exchange the names of witnesses and a brief summary of their expected testimonies and copies of each document that parties intend to introduce. The ALJ may also order further discovery, such as depositions, interrogatories, and requests for documents.

Coast Guard may suspend and seize a credential without a hearing if the mariner performs a safety-sensitive

NTSB

USDA The ALJ must approve a settlement submitted in the form of a proposed decision unless an error is apparent on the face of the document.

SEC The commission may approve an offer of settlement proposed by the respondent and submitted by the litigating entity with its recommendation to the commission.

At any time before the hearing, the parties may request the exchange of information, such as witness lists, exhibit lists, curricula vitae, and bibliographies of expert witnesses. Parties may also use interrogatories, requests for admissions, and other discovery tools. If there is a dispute between the parties, the ALJ may issue an order regarding discovery.

The ALJ may order parties to furnish outlines of the case or defense, the underlying legal theories, copies of or a list of documents that the parties anticipate introducing, and a list of anticipated witnesses. The ALJ may also order the taking of a deposition. At least 10 days prior to a hearing conducted by telephone, unless the hearing is scheduled to begin less than 20 days after the ALJ‘s notice stating the time of the hearing, each party must exchange a written narrative verified statement of the oral direct testimony of that party, each employee or agent of that party, and each expert witness that the party will call.

FAA may issue an emergency order, suspending a certificate immediately, upon determination that an emergency exists and safety

N/A

Unless otherwise ordered, no later than 7 days after service of the order instituting proceedings, the Enforcement Division must make available for inspecting and copying documents obtained by the division prior to the institution of proceedings in connection with the related investigation, with certain exceptions. The ALJ may also order any party to furnish appropriate information, such as an outline or summary of the case or defense, the underlying legal theories, copies and a list of documents to be introduced, and a list of witnesses, including a brief summary of their expected testimonies. Each party intending to call an expert witness must submit information about the witness, including a brief summary of the expected testimony, statement of the expert‘s qualifications, listing of other proceedings at which the expert has given testimony, and a list of the expert‘s publications. The ALJ may also order the taking of depositions. Expedited procedures do not apply to cases involving persons associated with broker-dealers and investment advisers.

N/A

ID=3019985.

Table 1. (Continued)

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Topic

Hearing

Coast Guard function on a vessel and there is probable cause to believe that he has committed certain violations. Agency must immediately file a complaint, and the ALJ must conduct a pre-hearing conference as early as practicable, at which time the respondent enters his answer. As soon as practicable after the conference but no later than 30 days after the temporary suspension, the ALJ holds a hearing, and the ALJ must issue the decision 45 days or less after the temporary suspension. At any time, the respondent may request that the credential be returned on the grounds that the agency lacked probable cause to suspend the credential. At any time, the respondent may move to discontinue the expedited process and continue under standard procedure. The ALJ schedules date, time, and place of hearing, with due regard for the convenience of the parties.

NTSB in air commerce or air transportation requires the immediate suspension of the certificate. Respondent may file appeal within 10 days. FAA must serve complaint within 3 days of appeal. The respondent must file answer within 5 days of complaint. The hearing must be held no later than 30 days after the appeal was received, and oral decision is issued at close of the hearing. The respondent may appeal the ALJ‘s initial decision to the board within 2 days after decision. The respondent may also, within 2 days after the date of receipt of an emergency order, file a petition for review of the FAA determination that an emergency exists. The ALJ must decide petition within 5 days, and if the ALJ grants petition, respondent retains certificate until completion of appeal. Under certain circumstances, respondent may waive expedited proceedings. The ALJ sets reasonable date, time, and place for hearing. In setting date, due regard must be given to the parties‘ discovery needs. In setting the place, due regard must be given to the location of the subject incident, the convenience of the parties and witnesses, and the conservation of agency funds.

USDA

The ALJ sets time, place, and manner for hearing with due regard for the public interest and convenience and necessity of parties. The ALJ will conduct hearing by audio-visual telecommunication (AVT) unless the judge determines that conducting the hearing by personal attendance of any individual is necessary to prevent prejudice to a party, is necessary because of a disability of any

SEC

The ALJ sets time and place for hearing with due regard for the public interest and the convenience and necessity of the parties. The order instituting proceedings will specify a time period in which an initial decision must be filed, and the order instituting proceedings will also state the period in which the hearing will take place. Under the 120-day deadline, the hearing will take place within approximately

ID=3019985.

Table 1. (Continued) Topic

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Decision

Review of a ruling prior to close of proceeding

Coast Guard

NTSB

ALJ decision must include a finding on each material issue of fact and conclusion of law, as well as the basis for each finding; the disposition of the case, including any appropriate order; the date upon which the decision is effective, and statement of the respondent‘s right to appeal. The ALJ may issue an oral decision at the close of the hearing, in which case ALJ must state the issues in the case and make clear, on the record, the findings of fact and conclusions of law. The Commandant may not review a ruling prior to the close of the proceeding.

ALJ decision must include findings and conclusions upon all material issues of fact, credibility of witnesses, law and discretion, as well as the reasons for each finding and conclusion. The ALJ may issue an oral decision at the close of the hearing.

ALJ rulings prior to close of proceeding may not be appealed except in extraordinary circumstances and with the consent of the ALJ. Such appeals may only be allowed if the ALJ finds that it is necessary to prevent substantial detriment to the public interest or

USDA individual, or would cost less than conducting the hearing by AVT. The ALJ may conduct the hearing by telephone if it would provide a full and fair evidentiary hearing, would not prejudice any party, and would cost less than conducting a hearing by AVT or personal attendance. Within 10 days after the ALJ issues notice of hearing, any party may request that the ALJ reconsider the manner in which the hearing is to be conducted. The ALJ may issue a decision orally at the close of the hearing or within a reasonable time after the closing of the hearing, and a copy of the decision — written or oral – must be furnished to the parties.

SEC 1 month; under the 210-day deadline, the hearing will take place within approximately 2 1/2 months; under the 300-day deadline, the hearing will take place within approximately 4 months.

The ALJ may request that the judicial officer make a determination on a motion, request, objection, or other question.

The ALJ may request that the commission review a ruling prior to the close of the proceeding if the ruling would compel testimony of commission members, officers, or employees or the production of documentary evidence in their custody or if the ALJ believes that the ruling involves a controlling

ALJ initial decision must include findings and conclusions, and the basis for the findings and conclusions, as to all the material issues of fact, law, or discretion, and the appropriate order, sanction, relief or denial of relief. Decision must also state the respondent‘s right to appeal, as well as the time period, not to exceed 21 days, within which an appeal may be filed.

ID=3019985.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Table 1. (Continued) Topic

Coast Guard

Disqualification of ALJ

The ALJ may disqualify himself at any time. Until the filing of the decision, any party may request that the ALJ disqualify himself for personal bias or other valid cause. If the ALJ does not disqualify himself, the moving party may appeal to the Commandant once the hearing has concluded.

The ALJ must withdraw from a proceeding if, at any time, he deems himself disqualified. If the ALJ does not withdraw, and if an appeal from the ALJ‘s initial decision is filed, the board will, if requested by the party, determine whether the ALJ should have withdrawn.

Entity deciding appeals of ALJ decisions

The ALJ decision may be appealed to the Commandant of the Coast Guard. The decision of the Commandant may be appealed to NTSB. To Commandant: 30 days To NTSB: 10 days

Full board

No ALJ can be assigned to serve in any proceeding that has any pecuniary interest in any matter or business involved in the proceeding, is related within the third degree by blood or marriage to any party, or has any conflict of interest that might impair the ALJ‘s objectivity. Any party may request that the ALJ withdraw from the proceeding because of an alleged disqualifying reason. The ALJ may either rule on the request or request that the Secretary decide the issue. USDA judicial officer

10 days

30 days

Deadline to appeal

NTSB undue prejudice to a party.

USDA

SEC question of law as to which there is substantial ground for difference of opinion and an immediate review of the order may materially advance the completion of the proceeding. The commission will grant a petition to review such an order only in extraordinary circumstances. The commission may, at any time, on its own initiative, direct that any matter be submitted to it for review. The ALJ must withdraw if he believes himself to be disqualified from considering a matter. Any party that has a reasonable, good faith basis to believe that an ALJ has a personal bias or is otherwise disqualified from hearing a case may make a request to the ALJ that the ALJ withdraw.

Full commission

Time period specified in initial decision, not to exceed 21 days, unless a party has filed a motion to correct a manifest error in the initial decision, in which case a party has 21 days from the date of the ALJ‘s order resolving the motion to correct.

ID=3019985.

Table 1. (Continued)

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Topic Issues to appeal

Discretion to grant review

Coast Guard To Commandant: (1) Whether each finding of fact is supported by substantial evidence (2) Whether each conclusion of law accords with applicable law, precedent, and policy (3) Whether the ALJ abused his discretion (4) The ALJ‘s denial of a request for disqualification To NTSB, in a case in which the credential was suspended or revoked: (1) Whether a finding of material fact is erroneous (2) Whether a necessary legal conclusion is without governing precedent or is contrary to law or precedent (3) A substantial and important question of law, policy, or discretion is involved (4) Whether a prejudicial procedural error has occurred To Commandant: No To NTSB: No

NTSB (1) Whether the findings of fact are each supported by a preponderance of reliable, probative, and substantial evidence (2) Whether conclusions are made in accordance with law, precedent, and policy (3) Whether the questions on appeal are substantial (4) Whether prejudicial procedural errors occurred

USDA The decision, any part of the decision, or any ruling by the ALJ.

No

No

SEC Any issue

Yes; the commission has discretion in determining whether to grant review. The commission considers: whether the petition makes a reasonable showing that a (1) a prejudicial error was committed in the conduct of the proceeding, or (2) the decision embodies a finding or conclusion of material fact that is clearly erroneous, a conclusion of law that is erroneous, or an exercise of discretion or decision of law or policy that is important and that the commission should review.

ID=3019985.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Table 1. (Continued) Topic Oral argument

Coast Guard To Commandant: No To NTSB: Each party may request to present an oral argument, and NTSB will grant the request for good cause.

NTSB NTSB may order oral argument, in response to a request or on its own initiative, if NTSB determines that oral argument is necessary.

USDA Each party may request to present an oral argument, and the judicial officer may grant, deny, or limit any request.

Review on own initiative

The Commandant may call up for review any decision of an ALJ in which there has been a finding that an allegation was proved.

NTSB may not review an ALJ decision on its own initiative.

The judicial officer may not review an ALJ decision on his own initiative.

Reopening proceedings/ requests for reconsideration

Within 30 days after the close of the hearing, any party may request to reopen the proceeding. The ALJ may reopen the proceeding upon belief that any change in law or fact or the public interest warrants reopening it. Within 3 years after a proceeding has resulted in revocation of a credential, a respondent may request that the proceeding be reopened to present evidence that the order of revocation is no longer valid and that the issuance of a

Before filing an appeal to the board, a party may request a reconsideration of the ALJ‘s decision. Within 30 days after the board‘s order on appeal, a party may petition the board for rehearing, reargument, reconsideration, or modification of the board order on appeal.

Within the period of time fixed by the ALJ, any party may propose corrections to the transcript or recording of the hearing, and as soon as practicable after the close of the hearing, the ALJ must issue an order making any corrections to the transcript or recording that the ALJs finds are warranted. A party may request to reopen a hearing to take further evidence at any time prior to the issuance of the decision of the judicial officer. Within 10 days after the judicial officer‘s decision, a party may petition to rehear or reargue the proceeding or to reconsider the

SEC Each party may request to present oral argument, and the commission may, in response to a request or on its own initiative, order oral argument with respect to any matter. The commission will order oral argument if the presentation of facts and legal arguments in the briefs and record and the decisional process would be significantly aided by oral argument. Motions for oral argument on whether to affirm part or all of the initial decision of an ALJ will be granted unless exceptional circumstances make oral argument impractical or inadvisable. The commission may, on its own initiative, order the review of any initial decision, or any portion of an initial decision, within 21 days after the end of the period established for filing an appeal Within 10 days of the initial decision, a party may file a motion to correct a manifest error of fact in the initial decision. A brief in opposition may be filed within 5 days of a motion to correct, and the AL must rule on the motion within 20 days of the filing of the brief in opposition. Within 10 days after the commission‘s order, a party may request a reconsideration of the commission‘s decision.

ID=3019985.

Table 1. (Continued) Topic

Judicial review

Coast Guard new credential is compatible with the requirement of good discipline and safety at sea. At any time, a party can request to reopen a case if the order rests on a specified conviction that has been unconditionally set aside by a court. A respondent or the Coast Guard may seek judicial review of NTSB‘s decision.

NTSB

A party may seek judicial review of a final order of the board.

USDA decision of the judicial officer.

A respondent may seek judicial review of the final decision of the judicial officer on appeal.

SEC

A respondent may seek judicial review of the final order of the commission.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Source: GAO analysis based on a review of pertinent agency regulations. Note: For purposes of this table, ―board‖ refers to the National Transportation Safety Board, and ―commission‖ refers to the Securities and Exchange Commission.

ID=3019985.

88

United States Government Accountability Office

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

U.S. Department of Agriculture USDA hears cases involving individuals employed with firms that buy and sell perishable agricultural commodities and dealers and exhibitors of animals, among other things. For example, within USDA, the Animal and Plant Health Inspection Service (APHIS) regulates certain animal dealers and exhibitors, who are required to maintain licenses and meet certain standards. If a licensee does not meet the necessary standards, the dealer or exhibitor license may be suspended or revoked. Similarly, firms that buy and sell perishable agricultural commodities are regulated by USDA‘s Agricultural Marketing Service (AMS), and individuals that are responsibly connected to a firm that violates AMS regulations may be subject to employment restrictions, such as a prohibition on employment with another licensee for 1 year. In order to suspend or revoke an animal dealer or exhibitor license or to impose employment restrictions on individuals responsibly connected to violator firms, the responsible USDA component conducts an investigation, and the Office of General Counsel (OGC) within that component prepares a complaint and submits it to the Office of Administrative Law Judges (OALJ). A USDA ALJ then conducts the administrative proceeding between the agency, represented by the component OGC, and the licensee, who may also have legal representation. Securities and Exchange Commission SEC handles cases including those involving individuals employed by broker-dealers and investment advisers.54 Broker-dealers and investment advisers are required by federal law to comply with certain standards in order to, for example, prevent fraud, and if individuals associated with those firms do not meet or violate those standards, SEC may, among other sanctions, bar the individuals from associating with broker-dealers or investment advisers for a specified period of time. In order to impose this sanction, SEC‘s Division of Enforcement conducts an investigation, presents evidence to the commission, and if the commission decides to issue an order instituting proceedings, an SEC ALJ adjudicates the claim between the agency, represented by the SEC Division of Enforcement, and the regulated entity. National Transportation Safety Board NTSB hears cases involving airmen, which includes pilots, air traffic control tower operators, and mechanics, among others. Airmen are required to obtain Federal Aviation Administration (FAA) issued certificates. If FAA determines that the suspension or revocation of an airman‘s certificate is necessary for aviation safety and the public interest, FAA may issue an order suspending or revoking the certificate. An airman may then appeal the order to an NTSB ALJ, who conducts the proceeding between the FAA Division of Enforcement and the certificate holder.

54

Broker-dealers are entities engaged in buying and selling securities, either for their own accounts or for the accounts of others. In addition to associated persons of broker-dealers and investment advisers, the Commission has adjudicatory jurisdiction over the broker-dealers and advisers themselves, investment companies, transfer agents, municipal security dealers, and government security dealers, as well as their associated persons, and disciplinary jurisdiction over those who appear and practice before the Commission, such as accountants and attorneys.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

89

Comparison of Structures and Procedures of Select Agencies’ ALJ Programs

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The structure of each of the agencies (Coast Guard, USDA, SEC, and NTSB) is similar, in that it contains elements designed to protect ALJs from undue agency influence, as required by the Administrative Procedures Act (APA). For example, no ALJ may be subject to the supervision or direction of an employee engaged in an investigating or litigating function for the agency, and the agency cannot remove an ALJ from office without good cause and a hearing before an independent entity. However, these agencies are illustrative of one primary structural difference among ALJ programs. Like Coast Guard ALJs and ALJs at most federal agencies, the ALJs at USDA and SEC are located within the regulating agency. That is, the ALJs that adjudicate disputes between the regulating agency and the regulated individual are located within the regulating agency. In contrast, NTSB ALJs handle the adjudication of cases arising in another agency, FAA. Under this structure, which is called a split-enforcement model, the adjudicating agency is distinct from the regulating agency. That is, the ALJs that adjudicate disputes between the regulating agency and the regulated individuals are located within a separate agency. Because the APA requires certain minimum procedures for these adjudications, the procedures associated with adjudications in each of these agencies are similar. For example, all of the agencies‘ regulations require the ALJs to consider the convenience of the parties when scheduling the date and location of hearings, require that ALJs include certain elements, such as findings of fact and conclusions of law, in their decisions, and provide a process by which an ALJ may be disqualified for bias. However, there are differences across the agencies. For example, the agencies have different procedures governing discovery, or the exchange of information between parties prior to adjudication. The Coast Guard and SEC require the parties to exchange certain information in all cases, whereas for USDA and NTSB proceedings, all discovery is discretionary, meaning that the ALJs order the parties to exchange certain information on a case-by-case basis. For example, the Coast Guard requires the parties to exchange the names of witnesses, a brief summary of their expected testimonies, and copies of each document to be introduced; with additional discovery being discretionary and requiring an ALJ order. SEC requires the agency to make available for inspection and copying documents collected during the investigation of the case, with some exceptions, but additional discovery is discretionary. No such requirements exist for USDA and NTSB proceedings.

The appeals process also differs across the agencies. The Coast Guard is the only agency that has a two-step appeals process after the ALJ decision, with one of the appeals to a separate agency. In this process, a party may appeal an ALJ decision to the Commandant, and, subsequently, in certain circumstances, the mariner may appeal the Commandant‘s decision to the full board at NTSB.55 At USDA, a party may appeal an ALJ decision to the judicial officer, an employee designated by the Secretary of Agriculture to hear such appeals. At SEC, a party may appeal an ALJ decision to the full commission. At NTSB, a party may appeal an ALJ decision to the full board. For a more detailed description of the procedures associated with administrative procedures at the Coast Guard, NTSB, USDA, and SEC, see table 1 below.

55

The National Transportation Safety Board has five members, appointed by the President and confirmed by the Senate to serve 5-year terms.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

90

United States. Government Accountability Office

APPENDIX II: OBJECTIVES, SCOPE, AND METHODOLOGY This chapteraddresses three objectives:  

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.



To what extent does the Coast Guard‘s Administrative Law Judge (ALJ) Program contain elements designed to foster the decisional independence of ALJs? To what extent does the Coast Guard‘s ALJ Program include protections for mariners and do complaints and decisions include elements required by the program‘s regulations? What is the disposition of Coast Guard ALJ suspension and revocation cases that were opened and closed from November 10, 2005, through September 30, 2008?

To address the first and second objectives, we analyzed the statutory provisions of the Administrative Procedure Act (APA), the Office of Personnel Management (OPM) regulations on administrative law judges, and Coast Guard regulations and policies and procedures governing administrative actions. We also interviewed Coast Guard Office of Administrative Law Judges (OALJ) officials to discuss Coast Guard administrative procedures and ALJ hearing process. Through reviews of the APA and pertinent OPM and Coast Guard regulations, we determined what structural elements are in place that are designed to foster the ALJs‘ decisional independence. We did not, however, assess whether the structural elements are effective at ensuring the ALJs‘ decisional independence. To address the second and third objectives, we initially obtained data from the Coast Guard ALJ program‘s case tracking database. Through discussions with knowledgeable officials from OALJ, we determined that the database was not designed or sufficiently reliable for addressing our specific objectives. In particular, the database was designed to function solely as a case tracking system and was not intended to capture the type of information that we were seeking. For example, outcomes were not categorized in a way that was consistent with how we intended to report them. As a result, we performed a case file review of open and closed mariner cases that had been completed in recent years. Due to a change in policy regarding the disposition of cases involving convictions for violations of drug laws effective November 10, 2005, we limited the time frame for our case file reviews to those cases that were opened and closed from November 10, 2005, through September 30, 2008. We used September 30, 2008, as the ending date for our case file selections because we began our review of cases in October 2008. This resulted in a review of 1,675 cases for our first objective. Then, to address the second objective, we selected a random, probability sample of 181 of the 1,675 closed cases to determine the extent to which certain mariner protections were being followed. In particular, we reviewed these cases to determine whether specific protections identified in Coast Guard procedures were documented in the mariners‘ case files. To address the third objective, an analyst reviewed all 1,675 mariner case files to determine the procedural and sanction-based outcomes associated with the cases. To verify the outcomes were recorded accurately, a pair of independent analysts subsequently selected a random sample of 198 cases (from the population of 1,675 cases) and recorded their outcomes. Then, this same pair of analysts compared their results with the originally recorded outcomes for the same 198 cases. Based on the results of this comparison, we estimate that

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

91

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

the error rate in recording case outcomes for the population (1,675) is 2 percent; and we are 95 percent confident that the actual error rate is less than or equal to 5 percent. Therefore, we conclude that the data generated from our analysis are sufficiently reliable for the purposes of our review. In conducting a comparison of the structure and procedures of the Coast Guard‘s ALJ program to those of the ALJ programs of the three other federal agencies—the U.S. Department of Agriculture, U.S. Securities and Exchange Commission, and the National Transportation Safety Board—we reviewed the regulations governing each of the programs and interviewed officials at each of the agencies. We selected these agencies because their ALJs hear cases involving the possible suspension or revocation of credentials necessary for employment in a particular field. We did not perform a case file review to determine whether the procedures were being followed or evaluate the effectiveness of their adjudicatory processes. Rather, we summarized the structures and procedures, highlighting similarities and differences between the agencies‘ programs to provide context compared to the Coast Guard‘s ALJ program. We also conducted outreach efforts to several mariner associations—to include American Maritime Officers; the Inland Boatman‘s Union; the Marine Engineers Beneficial Association; the International Organization of Master‘s, Mates, & Pilots; Seafarers International Union; and the U.S. Merchant Marine Academy—and attorneys to obtain their perspectives on Coast Guard structure and procedures, administrative actions, and ALJ hearing process. We identified mariner associations and attorneys through Internet searches and referrals obtained from interviews and agency contacts. We focused our outreach efforts on those associations and attorneys that represented or provided legal support to mariners who experienced a Coast Guard administrative action. Because the input we received from the various mariner associations and attorneys was varied and did not have a consistent message, we were not able to draw any conclusions from their input and so we did not include their comments in the report. This outreach effort, however, did provide us with important contextual information how mariner associations and attorneys perceived the Coast Guard‘s ALJ program.

We conducted this performance audit from May 2008 to June 2009 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

APPENDIX III: DETAILS REGARDING THE SANCTION OUTCOMES OF MARINERS’ SUSPENSION AND REVOCATION CASES The purpose of this appendix is to provide additional analyses regarding the sanction outcomes of all suspension and revocation cases that were opened and closed from November 10, 2005, through September 30, 2008. Specifically, in this appendix, we first provide additional details on the disposition of sanction outcomes for all 1,675 cases, and then we provide additional details on the sanction outcomes for two subsets (or types of procedural outcomes) cases—admissions and defaults.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

92

United States. Government Accountability Office

Sanction Outcomes of All Cases Reviewed

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

We reviewed case files from the total universe of 1,675 suspension and revocation cases that were opened and closed and found that 705 cases (42 percent) resulted in stayed revocations in which mariners agreed to voluntarily relinquish their credentials pending completion of certain conditions. In 205 cases (12 percent), the sanction was revocation in which the mariner‘s credential is permanently retracted by the Coast Guard. In 181 cases (11 percent) the sanction was a mitigated penalty with condition, in which the penalty was reduced upon the mariner fulfilling a stipulated condition. Figure 5 shows the range of sanction outcomes for all 1,675 cases reviewed.

Source: GAO analysis of Coast Guard ALJ case outcomes. Note: Percentages do not add to 100 due to rounding. Figure 5. Sanction Outcomes of the 1,675 Suspension and Revocation Cases Opened and Closed from November 10, 2005, through September 30, 2008

Source: GAO analysis of Coast Guard ALJ case outcomes. Figure 6. Sanction Outcomes of 116 Admissions Cases Opened and Closed from November 10, 2005, through September 30, 2008

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

93

Sanction Outcomes of Admissions Cases Our review of the suspension and revocation cases that were opened and closed from November 10, 2005, through September 30, 2008, showed that there were 116 cases in which mariners admitted to the allegations. Figure 6 shows the sanction outcomes by percentage of admissions cases. For example, the majority (65 percent) of admissions cases resulted in mariners receiving a suspension, in which their credentials were temporarily withheld by the Coast Guard for a specified period of time.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Source: GAO analysis of Coast Guard ALJ case outcomes. Figure 7. Sanction Outcomes of the 177 Default Cases Closed from November 10, 2005, through September 30, 2008

Sanction Outcomes of Default Cases Our review of the 1,675 suspension and revocation cases that were opened and closed from November 10, 2005, through September 30, 2008, showed that there were 177 default cases, in which a mariner did not respond to a complaint sent by the Coast Guard or appear at a conference or hearing. Figure 7 shows the sanction outcomes by percentage of default cases. For example, the majority (91 percent) of default cases resulted in mariners having their credentials revoked. Under this sanction, a mariner‘s credentials are permanently retracted by the Coast Guard.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

94

United States. Government Accountability Office

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

APPENDIX IV: COMMENTS FROM THE DEPARTMENT OF HOMELAND SECURITY APPENDIX IV: COMMENTS FROM THE DEPARTMENT OF HOMELAND SECURITY

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Coast Guard: Administrative Law Judge Program Contains Elements Designed…

95

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

RELATED GAO PRODUCTS Military Personnel: DOD‘s and the Coast Guard‘s Sexual Assault Prevention and Response Programs Face Implementation and Oversight Challenges. GAO-08-924 . Washington, D.C.: Aug. 29, 2008 Coast Guard: Observations on the Fiscal Year 2009 Budget, Recent Performance, and Related Challenges. GAO-08-494T . Washington, D.C.: Mar. 6, 2008. Maritime Security: Coast Guard Inspections Identify and Correct Facility Deficiencies, but More Analysis Needed of Program‘s Staffing, Practices, and Data. GAO-08-12 . Washington, D.C.: Feb. 14, 2008. Military Personnel: The DOD and Coast Guard Academies Have Taken Steps to Address Incidents of Sexual Harassment and Assault, but Greater Federal Oversight Is Needed. GAO08-296 . Washington, D.C.: Jan. 17, 2008. Coast Guard: Observations on the Fiscal Year 2008 Budget, Performance, Reorganization, and Related Challenges. GAO-07-489T . Washington, D.C.: Apr. 18, 2007. Coast Guard: Non-Homeland Security Performance Measures Are Generally Sound, but Opportunities for Improvement Exist. GAO-06-816 . Washington, D.C.: Aug. 16, 2006. Coast Guard: Observations on the Preparation, Response, and Recovery Missions Related to Hurricane Katrina. GAO-06-903 . Washington, D.C.: July 31, 2006. Coast Guard: Observations on Agency Performance, Operations, and Future Challenges. GAO-06-448T . Washington, D.C.: June 15, 2006. Coast Guard: Improvements Needed in Management and Oversight of Rescue System Acquisition. GAO-06-623 . Washington, D.C.: May 31, 2006. Coast Guard: Observations on Agency Priorities in Fiscal Year 2006 Budget Request. GAO-05-364T . Washington, D.C.: Mar. 17, 2005. Coast Guard: Station Readiness Improving, but Resource Challenges and Management Concerns Remain. GAO-05-161 . Washington, D.C.: Jan. 31, 2005. Coast Guard: Key Management and Budget Challenges for Fiscal Year 2005 and Beyond. GAO-04-636T . Washington, D.C.: Apr. 7, 2004. Coast Guard: Station Spending Requirements Met, but Better Processes Needed to Track Designated Funds. GAO-04-704 . Washington, D.C.: Mar. 28, 2004. Coast Guard Programs: Relationship between Resources Used and Results Achieved Needs to Be Clearer. GAO-04-432 . Washington, D.C.: Mar. 22, 2004. Coast Guard: Challenges during the Transition to the Department of Homeland Security. GAO-03-594T . Washington, D.C.: Apr. 1, 2003. Coast Guard: Comprehensive Blueprint Needed to Balance and Monitor Resource Use and Measure Performance for All Missions. GAO-03-544T . Washington, D.C.: Mar. 12, 2003. Coast Guard: Strategy Needed for Setting and Monitoring Levels of Effort for All Missions. GAO-03-155 . Washington, D.C.: Nov. 12, 2002. Coast Guard: Vessel Identification System Development Needs to Be Reassessed. GAO02-477 . Washington, D.C.: May 24, 2002. Coast Guard: Budget and Management Challenges for 2003 and Beyond. GAO-02-538T . Washington, D.C.: Mar. 19, 2002.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

96

United States. Government Accountability Office

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Social Security Administration: Agency Is Positioning Itself to Implement Its New Disability Determination Process, but Key Facets Are Still in Development. GAO-06-779T . Washington, D.C.: June 15, 2006. SSA Disability Decision Making: Additional Steps Needed to Ensure Accuracy and Fairness of Decisions at the Hearing Level. GAO-04-14 . Washington, D.C.: Nov. 12, 2003. Administrative Law Judges: Comparison of SEC and CFTC Programs. GAO/ GGD-9627 . Washington, D.C.: Nov. 14, 1995. Administrative Law Judges: Allegations of Interference by the Department of the Interior. GAO/ GGD-93-6 . Washington, D.C.: Oct. 2, 1992. Social Security: Reforms in the Disability Determination and Appeals Process. GAO/ THRD-91-24 . Washington, D.C.: May 2, 1991. Medicare: Statistics on the Part B Administrative Law Judge Hearings Process. GAO/ HRD-90-18 . Washington, D.C.: Nov. 28, 1989. Social Security: Results of Required Reviews of Administrative Law Judge Decisions. GAO/ HRD-89-48BR . Washington, D.C.: June 13, 1989. Administrative Law Judges: Appointment of Women and Social Security Administration Staff Attorneys. GAO/ GGD-89-5 . Washington, D.C.: Oct. 19, 1988. Medicare Claims: HCFA Proposal to Establish an Administrative Law Judge Unit. GAO/ HRD-88-84BR . Washington, D.C.: Apr. 20, 1988. Question Concerning Administrative Law Judge‘s Entitlement to Benefits. GAO/ B217874 . Washington, D.C.: Oct. 7, 1985. Department of Energy Procurement Practices, Personnel Management, Administrative Law Judge Activities, and Advisory Committee Management Operations. GAO/ 108613 . Washington, D.C.: Feb. 15, 1979. Review of Administrative Law Judge Activity and Hearing Process at the Federal Energy Regulatory Commission. GAO/ EMD-79-28 . Washington, D.C.: Feb. 13, 1979.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 5

REAUTHORIZATION OF THE FEDERAL MARITIME COMMISSION (FMC): OPPORTUNITY TO REEXAMINE THE CONGRESSIONALLY MANDATED ANTITRUST EXEMPTION FOR OCEAN LINER CARRIERS? 

John Frittelli

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY Authorization for the Federal Maritime Commission (FMC), the regulatory agency with jurisdiction over ocean liner carriers, expires at the end of FY2008, pursuant to P.L. 108-293. Although the FMC does not itself grant the antitrust exemption that Congress has provided to certain ocean liners in a series of shipping acts, the agency‘s reauthorization might provide an opportunity for Congress to reconsider the current viability of that exemption, which dates back to the early 1900s. The European Union (EU), for example, recently decided to outlaw collective rate-setting among container carriers engaged in EU trade lanes. Shipping lines contend such arrangements are still necessary to stabilize rates and service in liner shipping. Shippers argue that this exemption is no longer necessary and allows container carriers to charge more than they would otherwise. U.S. exporters contend that this exemption is a contributing factor in their inability to obtain enough containers and vessel space to meet surging demand for their goods. After years of large U.S. trade imbalances in which imported containers outnumbered exported containers by more than two to one, the decline in the U.S. dollar and rising incomes abroad have led to a dramatic rise in demand for U.S. goods. While the United States is no longer a provider of ocean container services, it is a large user of them. The persistent U.S. merchandise trade deficit manifests itself in the 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated September 2008.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

98

John Frittelli

container trade. Over three times more containers are imported from Asia than are exported to that region, while nearly two times more containers are imported from Europe than are exported to Europe. As a result of this imbalance, outbound shippingrates to Asia and Europe have been about half as much as inbound rates. While recent market changes have started a possible revival of the U.S. outbound trade that has long been non-remunerative, the import market still dominates shipowner decisions about where to deploy vessel space. The persistent merchandise trade deficit is thus a double-edged sword for U.S. exporters. Because of it, they ship at below cost, yet it also means that they are dependent on import market conditions for the supply of shipping space. Inasmuch as a desire for international comity is one factor that has shaped U.S. shipping policy, Congress could decide to follow the EU‘s lead and repeal antitrust immunity, or it could take a ―wait-and-see‖ approach to observe any positive or negative effects that the repeal may have on European trade. Repealing antitrust immunity may lead to lower freight rates but also greater price volatility and some amount of turmoil in the liner market. The historical development of U.S. shipping law has reflected a balance between maintaining a viable U.S.-owned liner fleet for national security purposes and consideration of the interests of U.S. importers and exporters for reliable shipping at competitive rates. Now that the U.S. liner fleet in foreign commerce has almost disappeared, policymakers may wish to reevaluate that balance. The focus of this chapteris on the commercial aspects of the U.S. liner trade. It does not provide a legal analysis of antitrust immunityas it applies to liner carriers.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

INTRODUCTION Unlike most other industries, which are, generally, fully subject to U.S. antitrust laws,1 ocean container lines (―liner‖ carriers) have limited exemption from these laws and are, therefore, permitted to discuss and set freight rates among themselves. This exemption dates back to the early 1900s, beginning with the Shipping Act of 1916,2 and has been continued through the present in the 1961 amendments to that act,3 the Shipping Act of 1984,4 and the Ocean Shipping Reform Act of 1998 (OSRA).5 Permission to engagein joint pricing activitywas thought necessary to stabilize rates and service in liner shipping. Liner carriers argue that this immunity is still needed due to chronic overcapacity in liner services caused by government programs to promote national-flag fleets and domestic shipbuilding. Shippers, the businesses that own the cargo and hire the ocean carriers to transport it, argue that this exemption is no longer necessary and allows container carriers to charge more than they would otherwise. U.S. exporters in particular contend that this exemption is a contributing factor in their inability to obtain enough containers and vessel space to meet 1

These laws include the Sherman Act (15 U.S.C. §§ 1-7), the Clayton Act (15 U.S.C. §§ 12-27), and the Federal Trade Commission Act (15 U.S.C. §§ 41 et seq.). See CRS Report RL31026, General Overview of United States Antitrust Law, by Janice E. Rubin. 2 Public No. 260 (64th Congress), 39 Stat. 728, 46 U.S.C. App. §§ 801 et seq. 3 P.L. 87-346. 4 P.L. 98-237, 98 Stat. 67. 5 P.L. 105-258, 112 Stat. 1902.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

99

surging demand for their goods. After years of large U.S. trade imbalances in which imported containers outnumbered exported containers by more than two to one, the decline in the U.S. dollar and rising incomes abroad have led to a dramatic rise in demand for U.S.-produced goods. For instance, in the first five months of 2008, containerized grain exports to Asia were 64% higher than for the same period last year.6 Yet U.S. agricultural exporters estimate that the shortage of containers and vessel space in recent months has held back their export volume by 20% to 30%.7 A desire for international comity is one factor that has shaped U.S. shipping policy in the past. Although the European Union (EU) recently decided to repeal antitrust immunity for container carriers engaged in EU trade lanes, effective this fall,8 the restof the world has generally not placed anyrestrictions on liner collective-rate setting and therefore traditional shipping conferences (cartel-like organizations) continue to exist on trade routes not involving the United States or Europe. Accordingly, Congress may wish to evaluate the need for continued U.S. liner antitrust immunity as it proceeds to reauthorize the Federal Maritime Commission (FMC), whose authorization expires at the end of FY2008.9 The FMC is the agency that exercises jurisdiction over the liner carriers and oversees the conditions Congress has placed on their rate-setting activities (discussed further below), including their antitrust exemption. The policy issues Congress might consider include: 



Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.





Should the United States follow Europe‘s lead and repeal antitrust immunity, or should it take a ―wait-and-see‖ approach to observe any positive or negative effects that the repeal may have on European trade? If repeal were to result in lower ocean freight rates but also greater price volatility with higher peaks and lower troughs, would this development be a net benefit to the U.S. economy? In the past, U.S. shipping policy was shaped by a desire to retain a U.S.-owned liner fleet engaged in foreign commerce. Now that this fleet has almost disappeared, should U.S. policy be shaped more by the interests of U.S. shippers? Given the tremendous disparity in total volume and dollar value of U.S. containerized imports versus exports, should the stated purpose of U.S. liner shipping policy be expanded to include the interests of importers in addition to exporters?

This chapter provides some historical and commercial context for evaluating these questions. After describing the types of agreements liner carriers have made with one another, the report discusses the historical rationale for providing liner carriers with antitrust immunity and how U.S. law has changed over time. Next, it describes Europe‘s and Asia‘s approach to liner conferences. The report then profiles U.S. overseas container trade, describing its importance to the U.S. economy, its underlying economics, and the reasons for the recent export container shortage. The report concludes by discussing stakeholder views and issues 6

U.S. Department of Agriculture, Grain Transportation Report, August 7, 2008, p. 3. ―Container Shortage Frustrates U.S. Exporters,‖ Wall Street Journal, May 9, 2008, p. A4. 8 Press Release IP/06/1249, European Commission - Competition: Commission welcomes Council Agreement to end exemption for liner shipping conferences, 25 September 2006. Available at [http://ec.europa.eu/comm/competition/antitrust/legislation/maritime/]. 9 P.L. 108-293. 7

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

100

John Frittelli

for Congress. The focus of this chapteris on the commercial aspects of the U.S. liner trade. It does not provide a legal analysis of antitrust immunity as it applies to liner carriers.

TYPES OF AGREEMENTS AMONG LINER CARRIERS Pricing Agreements Rate discussions among container carriers often focus on ―General Rate Increases‖ (GRIs) or ancillary surcharges that are added to the base, ocean freight rate (the port-to-port rate). These GRIs and surcharges have raised the ire of shippers because they are substantial (in combination they can exceed the base freight rate) and are typically charged uniformly by the carriers. The surcharges are intended to recover variable costs or shore-side related costs in ocean shipping, such as fluctuations in fuel prices and currency values, peak season-related congestion, repositioning of empty containers, terminal handling charges, and others. The carriers argue that these charges are properly separated from the base ocean rate because they are costs out of the carriers‘ control and itemizing them on the freight invoice provides transparency in shipping charges. Of the 219 liner carrier agreements that were on file with the FMC in 2006, 47 of these agreements related to pricing of liner services.10 Of the 47, 29 were ―discussion‖ agreements, 8 were ―conference‖ agreements, and 10 were other types of agreements.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Asset Sharing Agreements Liner ocean carriers also make agreements with each other to share vessel space, called vessel sharing agreements (VSAs), or to share chassis11 (chassis pools) at a given port or rail terminal. VSAs are typically made among two to four ocean carriers whereby they agree to provide container slots on each other‘s vessels in a given trade route. Sharing chassis among carriers allows them to reduce their inventory of this equipment and saves valuable space in ports or rail yards. VSAs and chassis pools are not opposed by shippers as they recognize that pooling resources among carriers allows for more efficient asset utilization, lowering the overall price of shipping.12 Of the 219 liner carrier agreements on file with the FMC in 2006, 172 did not include pricing authority and of these, 139 were VSAs.13

10

Statement of Steven Blust, Chairman of the FMC, before the Antitrust Modernization Commission, October 18, 2006. Available at [http://govinfo.library.unt.edu/amc/index.html]. 11 Chassis are the wheeled frame necessary to haul containers by truck. 12 However, there appears to be a difference of opinion between carriers and shippers over these so-called ―efficiency-enhancing‖ agreements that involves a legal question: whether specific antitrust immunity is necessary for carriers to continue to engage in these types of agreements. 13 Statement of Steven Blust, Chairman of the FMC, before the Antitrust Modernization Commission, October 18, 2006. Available at [http://govinfo.library.unt.edu/amc/index.html].

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

101

HISTORICAL RATIONALE FOR SHIPPING CONFERENCES Shipping conferences first appeared in the latter half of the 19th century as traditional sailing ships attempted to safeguard their business from the emergence of faster steamships.14 In the post-World War II era, shipping lines have formed conferences as a means of counteracting the effects of government support for merchant fleets. Many governments promote the development of their shipping industry. Some governments do this because of national pride. Shipbuilding is viewed by some nations as a sign of industrialization and a fleet of ships is viewed as a sign of international presence. Some governments support their shipping industry for national and economic security reasons. The bulk of overseas trade as well as military supplies (in wartime) is carried by ships. Governments may not want to be dependent on foreign carriers if overseas trade is vital to their economic welfare. Governments may want access to a commercial fleet they can control if a military need arises. For these reasons, many nations provide subsidies and other preferential treatment to domestic shipyards and shipowners. In a few cases, the shipyards and ships are owned and controlled directly or indirectly by the governments themselves.15 This includes two Chinese container lines, China Shipping and China Ocean Shipping (COSCO), and one from Singapore, APL, that are major players in the U.S. market. One of the effects of government intervention in the shipping industry is oversupply of shipping space. While there are periods of tight supply in a given trade lane and in a particular direction, more often ocean shipping is plagued by overcapacity. There are generally more ships available than there is cargo to fill them. Conference agreements were made among carriers in a particular trade route in order to limit the supply of shipping space, establish common tariffs (rates) among themselves, and keep rates from falling to unprofitable levels.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

PROMOTION OF THE U.S. MERCHANT FLEET The United States promotes its maritime industry by providing government-backed loans for the purchase of U.S.-built ships, prohibiting foreign-built and operated ships from engaging in U.S. coastal trade, and reserving significant portion of ―government impelled‖ cargoes, like food aid, for U.S.-flag carriers. The U.S. Navy keeps a fleet of cargo ships on standby in case of war or national emergency. It has also made agreements with privately owned and operated liner carriers to turn over their ships for the U.S. military‘s use when needed. These ships receive an operating subsidy to partially offset the additional cost of sailing under the U.S.-flag. Forty out of the 47 U.S.-flag container ships currently engaged foreign commerce are parties to this agreement. The forty ships are owned by Maersk, APL, and Hapag-Lloyd.16 Like some other industrialized nations seeking to retain a merchant fleet, the United States recently changed its tax structure to allow U.S.-flag carriers engaged in foreign trades to pay a flat tax based on the size of

14

The first successful conference appeared in 1875 in the trade between England and Calcutta. As required by law (46 U.S.C. App. Sec. 1702(3)), the FMC publishes annually a list of government controlled carriers. 16 U.S. Maritime Administration, ―U.S. Fleet, Year-End 2007,‖ Excel file. 15

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

102

John Frittelli

their fleet rather than paying tax based on their earnings.17 The prior tax system, based on income earned from shipping, is blamed by some for the sale of U.S.-based carriers like Sea-Land and APL to foreign buyers.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Shipowners assert that the economic structure of liner shipping is another cause for persistent overcapacity. In the near term, the supply of shipping space is fixed as carriers must adhere to their advertised sailing schedules. Moreover, the supply of shipping space is ―lumpy‖compared with its demand. A new container ship can cost about $60 to $70 million, require one to three years to plan and construct, and has a service-life of about 25 years. While demand in a particular trade route may increase or decrease incrementally (measurable in container units or container ―slots‖ on a ship), supply can only adjust by adding or withdrawing an entire ship. Also, if demand falls, ships cannot be easily converted to some other use, so they tend to remain in service, exacerbating overcapacity. Once a ship is in service in a given trade lane, the cost of carrying an additional container on that ship is almost nothing. In a perfectly competitive market, price tends to approach marginal cost. Driven by thedesire to fill their ships, carriers frequently find themselvescarryingcargoatrates that are, at best, marginally profitable. For the above reasons, a persistent ―boom and bust‖ cycle characterizes the liner shipping market. The current market is a case in point. While U.S. exporters are frustrated by a shortage of vessel space to Asia and Europe, vessel owners fear pending global overcapacity. Carriers ordered new ships in recent years because of steady, yearly increases in cargo volumes. However, these new ships are being delivered just in time for a significant slowdown in global trade. Forecasters predict that there will now be an increase in scrapping of older vessels and a lay up of some additional vessels.18

LEGISLATIVE HISTORY OF U.S. SHIPPING LAW During the initial era of conferences, some conferences began using ―fighting ships‖ and ―deferred rebates‖ to limit competition from non-conference carriers. A conference would deploy a fighting ship that would underprice the non-conference carrier. The conference carriers would share in the losses of the fighting ship until the new entrant was forced out of the trade or agreed to join the conference. Another controversial practice was the ―deferred rebate system‖ in which carriers would return a portion of their freight earnings to the shipper but only after two subsequent periods in which the shipper demonstrated exclusive loyalty to the conference. Thus, a shipper would suffer a substantial monetary penalty if it shipped with a non-conference carrier. This practice was meant to ―tie‖ the shipper to the conference and keep their business away from competing carriers. The anti-competitive practices described above led shippers to complain and prompted governments to scrutinize the shipping market more closely. In the United States, this scrutiny has resulted in a series of regulatory acts that endorsed conferences but also included provisions eroding their influence over time. The historical development of U.S. shipping law 17 18

P.L. 108-357, § 248 (26 U.S.C. § 1352). Global Insight, ―Trends in World Economics and Trade,‖ vol. 2, June 2008, p. 2.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

103

reflects a struggle between the national interest in a viable U.S.-owned liner fleet and the interests of U.S. importers and exporters for reliable shipping at competitive rates. While U.S. law reflects a recognition of the potential benefits of conferences it also established a regulatory regime to curb their abusive practices.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Shipping Act of 191619 Congress began investigating shipping conferences in the early 1900s. Congress concluded that the conferences were used to restrictcompetition but thatoverall, they were beneficial for international commerce because they provided price and service stability in ocean shipping. They also were seen as a necessary device to protect small shippers against large shippers who could extract rate discounts from carriers. The Shipping Act of 1916 legitimized conferences, exempting them from U.S. antitrust laws. However, the act also established ground rules for conference activities in U.S. trade lanes. The act created the U.S. Shipping Board, a predecessor to today‘s FMC, to regulate the activities of the conferences. The act required that conferences serving the U.S. trade be ―open,‖ meaning that they could not restrict new carriers from joining as ―closed‖ conferences did. The act also required that conference rate agreements be approved bythe Shipping Board. ―Fighting ships‖ and ―deferred rebates‖ were outlawed. The sanctioning of liner conferences in the context of government control has become the foundation of present-day regulation. The Shipping Act of 1916 represented a compromise between the United States‘ general desire for free enterprise and a recognition thatthe rest of the world generally condoned shipping conferences. Much of the 1916 Act pertained to promoting a national merchant fleet rather than for regulating the foreign trades. At the time of its passage, it was the provisions providing promotional authority to enlarge a U.S.-owned liner fleet that were considered the most important provisions in the act. The Shipping Board was given promotional duties in addition to regulatory powers. Later, in 1961, these functions were divided between the present day Maritime Administration (promotional duties) and the FMC (regulatory duties).

The 1961 Amendments20 After the 1916 Act, conferences began the practice of offering ―dual-rate contracts‖ which offered discounts (usually 15 %) to shippers that promised to ship a certain amount of their cargo with them. Unlike the outlawed ―deferred rebates‖ described above, this discount was made available at the time the shipper paid the freight bill. Non-conference carriers objected to these contracts and the U.S. Supreme Court outlawed them in 1958, finding that 19

Public No. 260 (64th Congress), 39 Stat. 728, 46 U.S.C. App. §§ 801 et seq. considered the most important provisions in the act. The Shipping Board was given promotional duties in addition to regulatory powers. Later, in 1961, these functions weredivided between the present day Maritime Administration (promotional duties) and the FMC (regulatory duties). 20 P.L. 87-346.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

104

John Frittelli

their purpose was to stifle competition.21 In 1961, Congress legislatively reversed the Supreme Court‘s decision with passage of what are commonly known as the 1961 Amendments. They required that all ocean carriers file their tariffs with the FMC. While the 1961 Amendments recognized the need for conferences and reaffirmed their immunity from U.S. antitrust laws, it also streamlined the FMC and gave it more power to scrutinize liner conferences.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Shipping Act of 198422 Congress overhauled the 1916 Act with the Shipping Act of 1984. The Shipping Act of 1984 was passed in the context of a move towards deregulation that occurred in other modes of transportation in the late 1970s and early 1980s. The Staggers Rail Act of 198023 and the Motor Carrier Act of 198024 helped to streamline inland transport of shipping containers by allowing for through bills of lading and cooperative agreements among intermodal carriers. The 1984 Shipping Act further strengthened and clarified carriers‘ antitrust immunity by providing that shippers could not seek antitrust relief under the Clayton Antitrust Act for practices that violated the Shipping Act. The 1984 Act was a response to court decisions that reinterpreted the antitrust immunity provisions in the 1916 Act and actions by the Department of Justice which resulted in significant fines against ocean carriers. However, the 1984 Act weakened the cohesiveness of shipping conferences because it allowed individual carriers within a conference to enter into individual service contracts with shippers at lower rates than the conference rate. In exchange for the lower rate, the shipper agreed to ship a certain amount of cargo during the life of the contract (usually a year). These contracts had to be made public and the carrier had to give the same offer to similarly situated shippers (i.e., ―common carriage‖). The conference could not interfere with the independent actions taken by their member carriers. In addition to allowing independent action by conference members, the 1984 Act included other provisions that gave carriers the flexibility to respond more quickly to market changes. The act extended antitrust immunity to cover intermodal through rates. Intermodal through rates include the price of inland carriage by truck, rail, or a combination thereof for overland connections to and from final destinations and origins. This feature expanded the carriers‘ ability to offer ―one-stop shopping‖ to those customers seeking door-to-door (as opposed to merely port-to-port) service. The 1984 Act also expedited the process for approving new or modified conference agreements. It required that they become effective 45 days after being submitted unless the FMC filed suit with the federal courts against the proposed agreement. Previously, a conference filing did not become effective until the FMC approved it, a process that could take years.

21

See Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481 (1958). P.L. 98-237, 98 Stat. 67, 46 U.S.C. App. §§ 1701 et seq. 23 P.L. 96-448, 94 Stat. 1895. 24 P.L. 96-296, 94 Stat. 793. 22

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

105

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Ocean Shipping Reform Act of 199825 The 1984 Act set up an Advisory Committee to study the effects of the act, beginning five and one-half years after its enactment. The Advisory Committee reported its findings to Congress in 1992,26 stimulating further legislative debate and ultimately leading to the Ocean Shipping Reform Act of 1998 (OSRA).27 The intent of OSRA was to expand the flexibility of carriers and shippers to tailor their contractual relationships in a manner that best meets their needs. In contrast to the 1984 Act, a significant provision in the 1998 Act stated that contracts no longer had to be made public and carriers did not have to offer the same rates to similarly situated shippers. Thus, conferences lost the ability to enforce agreed-upon terms among their members. Shippers were dissatisfied with the 1984 Act because requiring service contracts to be made public had enabled the conference to police its members. The act essentially represented a move away from ―common carriage‖ to one of ―contract carriage.‖28 About 95% of liner cargo now moves under a confidential service contract, according to the container line shipping association.29 The 1984 and 1998 Acts undermined the influence of conferences. Since then, conferences have become less relevant and to a large extent have been replaced with more loosely structured ―discussion groups‖ or ―stabilization agreements.‖ These discussion groups may include conference and non-conference carriers and are supposed to be voluntary agreements on prices rather than binding arrangements. Also undermining the influence of conferences has been the improved service performance of independent (non-conference) carriers. Historically, independents competed with conference carriers by offering lower rates, but it was recognized that their service may not be as reliable. More recently, that perception of lower service quality has been erased. The focus of rate discussions may be the ―base rate‖ for ocean transport, but more often, as mentioned earlier, the focus is on ancillary surcharges such as ―container repositioning charge,‖ ―peak-season surcharge,‖ or ―general rate increases‖ (GRI), among others. These surcharges are resented by shipper groups and are usually the focus of their opposition to antitrust immunity because they are generally not included in the fixed terms of a contract. Whether or not member carriers of a discussion agreement actually charge their customers these surcharges is highly dependent on market conditions and the potential volume of cargo a given shipper has to offer a carrier. The rate established by the discussion agreement typically serves as a benchmark from which a discount is negotiated between carrier and shipper.

25

P.L. 105-258, 112 Stat. 1902. U.S. Advisory Commission on Conferences in Ocean Shipping, Report to the President and Congress of the Advisory Commission on Conferences in Ocean Shipping, Washington, D.C., April 10, 1992. 27 For further information, see Ira Lewis and David B. Vellenga, ―The Ocean Shipping Reform Act of 1998,‖ Transportation Journal, Summer 2000, p. 27. 28 DrewH.M. Stapleton and Soumen N. Ghosh, ―The Ocean Shipping Reform Act: Practical Implications for Both Buyers and Sellers,‖ 67 Journal of Transportation Law, Logistics, and Policy 53 (Fall 1999). 29 Statement of Stanley Sher, World Shipping Council, before the Antitrust Modernization Commission, October 18, 2006, p. 2. 26

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

106

John Frittelli

Legislative Activity since OSRA

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In the 106th Congress, Representative Henry J. Hyde, then Chairman of the House Judiciary Committee, introduced the Free Market Antitrust ImmunityReform Act of 1999 (FAIR Act, H.R. 3138). The FAIR Act was reintroduced in the 107th Congress (H.R. 1253) byHyde‘s successor as Chairman of the Judiciary Committee, RepresentativeF.James Sensenbrenner, Jr. and the committee held ahearingon June 5, 2002. These bills were not acted upon by their respective committees and no bills regarding liner shipping antitrust immunity were introduced in the 108th and 109th Congresses, nor as of yet, the 110th Congress. The last reauthorization of the FMC (P.L. 108-293, §§ 501-502, which authorizes the FMC through the end of FY2008) does not address the issue of antitrust immunity. The House Transportation and Infrastructure Committee, Subcommittee on Coast Guard and Maritime Transportation held a hearing on May 3, 2000 to review the effect of OSRA on ocean shipping. In the 110th Congress, the same committee held a hearing on the FMC and the regulation of international liner shipping on June 19, 2008. Liner shipping antitrust immunity was one of the subjects studied by the Antitrust Modernization Commission (AMC) which was established by Congress in P.L. 107-273. The AMC held a hearing on ocean antitrust immunity in October 2006. While its final report to Congress does not make any specific recommendation to repeal ocean antitrust immunity, it does appear highly skeptical of the need for the continued existence of such immunity. Some of the commissioners, in separate statements, called for a repeal.30 The FMC also testified before the AMC, with the Chairman testifying in support of continued antitrust immunity and describing current shipper — carrier relations as ―relatively harmonious.‖ One FMC Reports, transcripts, and testimonies of the AMC are available on its website at [http://www.amc.gov]. Commissioner submitted a separate statement calling for repeal of antitrust immunity.

ASIAN AND EUROPEAN APPROACHES TO LINER CONFERENCES Relative to the United States, most countries have taken a laissez faire approach to liner conferences — that is, they have allowed them to exist without much government intervention. However, Europe‘s recent change in course on this issue has spurred debate among Asian nations about the merits of shipping conferences. A 2002 OECD report calling for the repeal of antitrust immunity has also stimulated debate on this issue.31

Europe The European Commission‘s Regulation 4056/86, enacted in 1986, had granted liner carriers a block exemption from Europe‘s competition laws allowing shipping conferences to continue on trade routes to and from Europe. Unlike the United States, however, the 30 31

Reports, transcripts, and testimonies of the AMC are available on its website at [http://www.amc.gov]. OECD, Competition Policy in Liner Shipping, April 16, 2002.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

107

exemption did not include inland transportation. The EU repealed the exemption from competition law in September 2006 (EC Regulation 1419/2006) and this repeal will come into effect on October 18, 2008. The coming repeal of the antitrust exemption will prohibit carriers from engaging in collective rate setting and discussing capacity utilization in detail, but carriers will be allowed to continue vessel-sharing agreements and other ―efficiencyenhancing‖ operational agreements.32 Shippers do not oppose vessel-sharing agreements.

Asia

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Asian Shippers Council (ASC) has been pushing for repeal of antitrust immunity among Asian nations but with mixed success. The chairman of this council notes that different Asian countries have different dominant roles in liner service, which partly explains the respective position of these countries with respect to liner conferences.33 China and India are net users of liner services, Japan is a net provider of liner services, and Hong Kong and Singapore are primarily facilitators of liner services. The focal point over rate-setting practices in Asia has been the assessment of terminal handling charges that were instituted by the liner carriers starting in 2001.

China Chinese maritime regulations are under the jurisdiction of the Ministry of Commerce which allows collective agreements among shipping lines. However, in March 2007, China‘s Ministry of Communication issued a requirement that shipping lines first discuss any proposed rate increases with their customers and that they file their conference and discussion agreements with the Ministry fifteen days before they become effective, raising speculation that the government will be scrutinizing the liner conferences more closely.34 Moreover, China passed a competition law in August 2007 that came into force in August 2008. The new law does not exempt liner conferences from the law‘s antitrust provisions.35 According to one report, the ASC is ready to go to court if this new law does not take precedence over Chinese maritime regulations.36 Thus, Chinese policy appears to be in flux, but it is not clear as of yet what the exact implications will be for liner carriers calling at Chinese ports. India India is also purportedly moving in thedirection of outlawing collective rate-setting. The Competition Commission of India (CCI), created by a law passed in 2002 but whose actions have been delayed by litigation, appears to be in favor of banning collective-rate setting and has advised India‘s Ministry of Shipping to curb the practice. However, India‘s Ministry of 32

―Antitrust: Commission Adopts Guidelines on Application of Competition Rules to Maritime Transport Services,‖ IP/08/1063, July 1, 2008. The guidelines are available at [http://ec.europa.eu/comm/competition/antitrust/legislation/maritime/]. 33 ―Final Front is Asia, American Shipper, November 2007, pp. 6-10. 34 ―China‘s Own FMC?‖ American Shipper, May 2007, p. 46. 35 ―China‘s Anti-trust Act to Outlaw Liner Conferences,‖ Lloyd‘s List, September 18, 2007, p. 1. 36 ―Asian Shippers Ready To Go To Court Over Price-Fixing, ASC Says China‘s AntitrustLaw Must Be Obeyed,‖ Lloyd‘s List, August 20, 2008, p. 1.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

108

John Frittelli

Shipping appears to favor further oversight of current shipping practices rather than an outright ban on conferences.37 The apparent conflict of interest has prompted a liner conference operating in this trade route to request clarification.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Japan Japan appears to favor the status quo — that is, allowing the conference system to continue. Japan may prove to be a holdout for the conference system due to the fact that large shippers are linked to large ocean carriers in Japan through the keiretsu or ―group system‖ of business organization.38 Also, Japan may favor the carrier‘s perspective because Japanese ocean carriers rely more on trade outside Japan than they do on trade to or from Japan. As the ASC chairman stated, ―Japan will not want to let go of the maritime exemption. Why should it? The liners get money substantially into the country.‖39 Singapore and Hong Kong Singapore and Hong Kong, like Japan, are also home to major ocean carriers and are world rivals as container transfer hubs, but neither are home to large producers or importers of liner cargo. Understandably, a concern of the Hong Kong and Singapore governments is that they not be too far out of step with the maritime regulatory regimes of the major trading nations using their transport services. Hong Kong‘s strong tradition for laissez faire policies may explain its lack of a competition law, but it appears to be evaluating the need for a ―Asia Confident of Liner-block Move; Region Expected to Follow in Footsteps of European Repeal,‖ Lloyd‘s List, September 20, 2007, p. 7. competition policy in the liner sector. Hong Kong has lost some of its market share to mainland Chinese ports, partly because of higher terminal handling charges that are applied across the board by the shipping lines calling at Hong Kong. Singapore granted a five year exemption for liner carriers from its new competition law that came into effect on January 1, 2006. The Singapore Competition Commission stated that ―it was seeking to create a regulatory environment for shipping lines operating through Singapore that was broadly aligned with that in other major jurisdictions.‖40

PROFILE OF U.S. OVERSEAS CONTAINER TRADE Liner carriers sail on a defined trade route with regularly scheduled arrivals and departures at designated ports. Today, liner carriers predominantly operate container ships but car carriers (roll-on/roll-off vessels) also fall under this category. A marine container is a

37

―Asia‘s Antitrust Revolution,‖ American Shipper, November 2007, pp. 10-12. ―Internal Struggle,‖ American Shipper, June 2007, pp. 50-55. 39 ―Asia Confident of Liner-block Move; Region Expected to Follow in Footsteps of European Repeal,‖ Lloyd‘s List, September 20, 2007, p. 7. 40 ―Singapore Antitrust Immunity Stays for Liner Groupings,‖ The Business Times Singapore, October 5, 2006. 38

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

109

large steel box that is used to consolidate cargo into a standardized unit.41 Liner carriers load and unload containers at each scheduled port somewhat like a city bus picking up and dropping off passengers at scheduled bus stops. Because container ships typically call at three or four ports along a coast, ports with a short access channel from the ocean are preferred over ports requiring a long transit up a bay or river. Liner ships are distinguished from ―tramp‖ vessels which typically carry bulk commodities, such as grain, iron ore, or coal, sail wherever demand dictates, and contract with the shipper on a per-voyage basis. Although it was an American company that started the ―container revolution‖ in liner shipping, today almost all of U.S. foreign liner trade is carried by foreign-owned carriers. Two large U.S.-based container lines were sold to foreign interests in the late 1990s. In 1999, Sea-Land Service, the U.S. company that pioneered container shipping in the late 1950s was sold to Maersk Lines, a Danish carrier. As the name ―Sea-Land‖ suggests, this company‘s business model was capitalizing on the easy transferability of containers from ships to trucks and railroads. The container has now become synonymous with the term ―intermodal‖ transportation. In 1997, American President Lines (APL), a pioneer in the development of double-stack container rail service in the mid-1980s, greatly improving the efficiency of inland container transport, was sold to Neptune Orient Lines, a carrier controlled by the Government of Singapore. In 2003, a new U.S.-based company tried to establish a foothold in the trans-Pacific trade, reviving the name of a venerable predecessor, United States Lines, but it was acquired by a French carrier in 2007. Table 1 lists the top fifteen container carriers based on the TEU capacity of their fleet and the location of their world headquarters.42 The virtual disappearance of the U.S. liner fleet raises the issue of whether the Shipping Act of 1984, which has a stated purpose of promoting the U.S.-liner fleet, needs to be revisited. While the United States is no longer a provider of ocean container services, it is a large user of them. The United States is the second-largest maritime container trading nation (after China), accounting for 11% of worldwide container traffic.43 This means that about one in every nine containers moving globally is bound to or from the United States. U.S. container traffic nearly doubled over the past decade.44 The top five U.S. trading partners in maritime container trade are all Asian nations: China, Japan, Taiwan, South Korea, and Hong Kong. China‘s role in the U.S. container trade is hard to overstate, as shown in Figure 1, which lists the top 10 U.S. containerized cargo trading partners in 2007. Compared to other types of waterborne cargo, such as bulk or break-bulk cargo, containerized cargo has a higher value-to-weight ratio. While containerized cargo accounts for only 20% of U.S. overseas waterborne tonnage, it accounts for about 55% of the total dollar value of U.S. overseas waterborne trade.45 Imports of containerized cargo are dominated by consumer goods. The ―box‖ ship has been instrumental in the success of ―big box‖ retailers such as Wal-Mart, Target, Home Depot, Lowes, Costco, and Ikea which are among the top importers of containerized cargo. Other leading importers include consumer 41

Standard sizes are 8x8x20 feet and 8x8x40 feet, but the 40-foot container, which is roughly equivalent to a truck load, is the most commonly used. Containers are measured in 20-foot equivalent units, or TEUs. A 40-foot container is equal to two TEUs. 42 Journal of Commerce, July 23, 2007, p. 27, based on data as of July 12, 2007, from AXS-Alphaliner. 43 U.S. DOT, Bureau of Transportation Statistics, America‘s Container Ports, Delivering the Goods, March 2007. 44 Ibid. 45 Calculation from Global Trade Information Services, Inc., World Trade Atlas, using 2007 trade data.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

110

John Frittelli

goods producers such as Dole Foods, Philips Electronics, Heineken, Canon, and Nike. Exports of containerized cargo are dominated by wastepaper, forest products, chemicals, plastics, rubber, agricultural commodities, and machinery. America Chung Nam (a wastepaper exporter), Weyerhaeuser, DuPont, Cargill, Procter and Gamble, General Electric and the competitors of these companies are the largest U.S. exporters of containerized cargo.46 Automobile manufacturers are significant exporters and importers of containerized cargo. Because U.S. containerized imports tend to be higher value finished goods while U.S. containerized exports tend to be lower value primary or intermediate goods, and because the United States imports about twice as many containers as it exports, the dollar value of containerized imports is nearlythree times greater than that of exports while the tonnage of imports exceeds exports by over one and one-half times.47

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Table 1. The Top 15 Container Lines by Size of Fleet Ship Operator Home Base Market Share 1) A.P. Moller-Maersk Copenhagen, Denmark 16.2% 2) Mediterranean Shipping Geneva, Switzerland 10.5% 3) CMA CGM Group Marseilles, France 7.6% 4) Evergreen Line Taipei, Taiwan 5.1% 5) Hapag-Lloyd Hamburg, Germany 4.0% 6) COSCO Shanghai, China 3.8% 7) APL Singapore 3.6% 8) China Shipping Shanghai, China 3.4% 9) NYK Line Tokyo, Japan 3.3% 10) Hanjin/Senator Seoul, South Korea 3.0% 11) MOL Tokyo, Japan 2.9% 12) OOCL Hong Kong 2.8% 13) ―K‖ Line Tokyo, Japan 2.4% 14) Zim Haifa, Israel 2.4% 15) Yang Ming Keelung, Taiwan 2.3% Source: Journal of Commerce, July 21, 2008, p. 15, based on data as of July 12, 2008, from AXSAlphaliner.

46

For a list of the top 100 importers and exporters of containerized cargo, see Journal of Commerce, vol. 2, issue 21, May 28, 2007, pp. 16A-24A and 40A-48A. 47 Calculation fromGlobal Trade Information Services, Inc., World Trade Atlas, using 2007 trade data.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

111

Source: U.S. Maritime Administration, based on PIERS database. Figure 1. U.S. Waterborne Foreign Container Trade, Top 10 Trading Partners in 2007

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Directional Imbalances The persistent U.S. merchandise trade deficit manifests itself in the container trade. Over three times more containers are imported from Asia than are exported to that region, while nearly two times more containers are imported from Europe than are exported (see Table 2). Container trade with South America is more balanced but it is of much smaller scale than trade with Asia and Europe. As a result of the imbalance, outbound rates to Asia and Europe have been consistently much lower than inbound rates. Outbound rates for ―dry‖ containers (non-refrigerated) may merely reflect the variable costs of moving a container back to Asia or Europe, since the container would otherwise be returned empty. Figure 2 shows the market average freight rate for 2006 and the first two quarters of 2007 for trade routes to and from Asia and Europe.

Recent Shift in Trade Flows The recent decline of the U.S. dollar has significantly dampened the once burgeoning Asia to North America liner trade. In this trade lane, trade volume increased by 10% in 2006, 2.2% in 2007, but is expected to decrease 7.1% in 2008.48 As a result of the slowdown in 2007, shipowners shifted vessels from this trade lane to the more robust Asia to Europe trade, 48

Global Insight, ―Trends in World Economics and Trade,‖ vol. 2, June 2008, pp. 2 and 26.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

112

John Frittelli

which grew 19.9% in 2007. But a softening in this trade lane is also now occurring and is forecasted to increase by 9.9% in 2008.49 On the outbound side, North America to Asia container trade grew by 5.3% in 2006, 12.7% in 2007, and is forecast to increase 21.6% in 2008.50 In addition to the decline of the dollar, rising standards of living in China and India are believed to be fueling U.S. export growth to Asia. Despite this shift in trade growth from inbound to outbound, export volumes to Asia are still only about a third of import volumes from Asia.51 While the U.S. dollar‘s decline has started a possible revival of the long-time, nonremunerative U.S. outbound trade, the import market still dominates shipowner decisions about where to deploy vessel space. Even though the current demand for outbound vessel space is raising outbound rates, they must increase substantially to approach inbound rates and attract vessels to the trade. As one shipping line executive stated,52 The problem isn‘t boxes. If I suddenly got 10 times more equipment in North America, exporters might get boxes, but they‘re not going to get more space on ships. The problem is vessel capacity, and the capacity is what it is because the inbound market has turned negative in terms of growth.

Table 2. U.S. Containerized Trade Imbalance (millions of TEUs)

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Year Asia to USA USA to Asia Europe to USA 2005 12.4 4.4 3.8 2006 13.9 4.6 3.9 2007(forecast) 14.8 5.0 3.9 Source: UNCTAD, Review of Maritime Transport, 2007, p. 74.

USA to Europe 2.1 2.3 2.4

In other words, carrier capacity is driven by the more lucrative import market, and export volume alone does not presently justify investment in new services. In the smaller trans-Atlantic market, however, the eastbound market (U.S. to Europe) is expected to be larger than the westbound market (Europe to the U.S.) In 2008 for the first time since 1996.53 In 2008, North America to Europe container volume is expected to increase 11.1% while trade going the other way is expected to decrease 3.7%.54 If current trends continue, the traditional back-haul to Europe could become what carriers call the ―head-haul,‖ or the route that drives the business, and carriers would begin to design their services around the eastbound leg rather than the westbound leg. However, at least one carrier executive does not think this will happen in the near term, stating ―The true definition of a head-haul is the leg that pays the underlying cost of the trade, and we‘re not there yet. We still

49

Ibid. p. 25, and ―Slo-Mo in Europe; Special Report: Asia -Europe Shipping,‖ Journal ofCommerce, August 11, 2008, pp. 13-16. 50 Ibid. p. 26. 51 UNCTAD, Review of Maritime Transport, 2007, p. 74. 52 Ron Widdows, CEO of APL, as quoted in Journal of Commerce, ―Searching for Solutions,‖ pp. 11-13. 53 ―Too Much, Too Soon,‖ Journal of Commerce, July 30, 2008. 54 Global Insight, ―Trends in World Economics and Trade,‖ vol. 2, June 2008, p. 27.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

113

need a significant increase in eastbound rates or a significant decrease in westbound rates to get there.‖55

Source: UNCTAD, Review of Maritime Transport, 2007, p. 73.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Figure 2. Container Ship Freight Rates.

From a liner carrier‘s perspective, a number of factors limit the profitability of U.S. export cargo. U.S. export cargo generally is of lower value than import cargo because export cargo tends to be primary or intermediate goods while import cargo tends to be finished, consumer goods. Higher value cargo can bear a higher transport rate. During periods of peak demand on the import leg, carriers may even consider returning some containers empty, even if payloads are available, because empty containers can be turned around faster overseas than loaded containers. Because current export cargoes are generally heavier than import cargoes, an outbound container ship cannot carry as many loaded containers as an inbound ship. An outbound vessel may reach its load line with only 70% of its container slots filled. Draft limitations in the Panama Canal further restrict the load capacity of certain classes of ships bound to Asia from U.S. east coast ports.56 The reduced capacity of outbound ships reduces the revenue generated by these voyages. Another inhibitor in the profitability of U.S. export cargo is empty container repositioning costs. In the United States, import containers are primarily destined for cities while exports tend to originate in agricultural production areas. The cost of repositioning containers from import unloading centers to export loading centers is generally 55

―Going With The Flow: Surging Exports Bring Trans-Atlantic Trade Into Balance — Almost,‖ Journal of Commerce, August 18, 2008, p. 27. 56 ―Unchartered Waters; Costs, Strong Exports Complicate This Year‘s Trans-Pacific Peak Season,‖ Journal of Commerce, June 30, 2008, p. 14.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

114

John Frittelli

covered in the import rate since this has traditionally been the ―head-haul‖ leg. In Asia, empty containers are repositioned on feeder vessels from Southeast Asia to China. This is because while China is the dominant point of origin of U.S. imports from Asia, U.S. exports to Asia are slightly more dispersed, and include exports to India, Indonesia, and Southeast Asia. The persistent merchandise trade imbalance is a double-edged sword for U.S. exporters. Because of it, they ship at below cost, yet it also means that they are dependent on the import market for the supply of shipping space. Exporters are facing an empty container shortage because there is a shortage of import shipments to subsidize container repositioning costs. Two developments could increase the revenue generated by U.S. export cargo for container carriers. With rising standards of living in China and India, meat products could become an increasingly important revenue source for liner carriers. Frozen or chilled meat products are a higher margin cargo for container carriers. Secondly, if the relative weakness in the value of the U.S. dollar were to persist over the long term, higher value manufactured goods, like machinery parts, could become a more significant part of the export mix. Rising fuel costs have led to speculation as to how the current geography of trade might change. Containerization, by lowering transport costs, is credited as being as influential as free trade agreements in spurring overseas trade growth in recent decades. For instance, it is estimated that the cost of shipping a pair of sneakers from Asia amounts to as little as 26 cents in a $50 pair of shoes.57 Reportedly, fuel now accounts for about 50% to 60% of the total cost of operating a vessel.58 To save on fuel, container ships have begun ―slow steaming,‖ reducing cruising speed from 24 to 25 knots to 19 or 20 knots. However, because of ―soaring oil costs,‖ according to one trade observer, ―the explosion in global transport costs has effectively offset all the trade liberalization efforts of the last three decades,‖ and current ―transport costs are equivalent to an average tariff rate of more than 9%.‖59 While labor cost differentials arestill a significant factor in U.S. trade with China and Southeast Asia, there is some speculation that some production for the U.S. market could shift from there to Mexico to save on transport costs.60 A similar development could occur with respect to Europe, China, and eastern Europe.61 Asia to North America and Asia to Europe are the two largest container trade routes, by far. The effect of higher fuel costs on trade will depend on the value of the goods being traded. Containerized cargoes exhibit a wide range of cargo values.

STAKEHOLDER VIEWS Some impartial observers argue thattheissue of antitrust immunity is somewhat moot because the rise of independent (non-conference) carriers and the advent of confidential contracts has significantly diminished the pricing power carriers once enjoyed. Some believe 57

―Opposing Views Emerge on Liner Shipping,‖ The Business Times Singapore, June 11, 2008. ―Uncharted Waters; Costs, Strong Exports Complicate This Year‘s Trans-Pacific Peak Season,‖ Journal of Commerce, June 30, 2008, p. 14. 59 Jeff Rubin and Benjamin Tal, CIBC World Markets, Inc. ―Will Soaring Transport Costs Reverse Globalization?‖ May 27, 2008. 60 Ibid. 61 ―Slo-Mo in Europe; Special Report: Asia - Europe Shipping,‖ Journal of Commerce, August 11, 2008, pp. 13-16. 58

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

115

that since OSRA, market forces, not carriers, essentially dictate freight rates. Other observers, while acknowledging that the influence of conferences has certainly declined, contend that the emergence of discussion groups, which include rate discussions between conference and independent carriers, means that price collusion has extended to a larger group of carriers, giving carriers more market power.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Liner Carriers Shipowners and other defenders of antitrust immunity argue that immunity is needed to keep rates from falling so low that carriers are forced into bankruptcy, leaving cargo stranded at docks, and creating an uncertain and chaotic environment for ocean-borne commerce. They believe repealing antitrust immunity would result in greater potential for monopolistic behavior because the number of carriers would dwindle due to bankruptcies. Currently, in terms of container ship capacity, the top five container lines have a combined market share of 43%, the top ten have a market share of 61%, and the top twenty have a market share of 83%.62 They believe the carriers most likely to prevail would not necessarily be the most efficient ones but the ones that receive the most government support. They argue that price collusion acts as an artificial stabilizer, ensuring a reliable and predictable market for ocean shipping services. They view antitrust immunity as a necessary price for maintaining scheduled services. Moreover, carriers argue that their ―efficiency-enhancing agreements‖ allow them to pass on operational cost savings to the shippers in the form of lower rates. They argue that these arrangements haveincreased competition in the market because they make it easier for carriers to enter into additional trade lanes. By allowing carriers to share ship space rather than independently deploying their own ships, the cost of entering into new markets is lower. They argue that a repeal of the exemption could encourage shipowners to return to the use of smaller vessels as VSAs decline, thus losing the economies of scale that larger vessels allow. These types of agreements are not contested by shippers and their supporters.

Ports Marine terminal operators are also exempted from antitrust immunity. They argue that they must be able to discuss rate and service issues in order to assess surcharges to finance security related improvements in ports, allocate labor among the various terminals in a port, implement clean air initiatives, and reduce truck congestion at ports.

Shippers Some shippers and other opponents of antitrust immunity argue that immunity allows carriers to charge higher rates, especially when supply is tight, than shippers would otherwise 62

―Special Report: Container Shipping,‖ Journal of Commerce, July 21, 2008, p. 15.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

116

John Frittelli

have to pay. They contend that price fixing arrangements protect the least efficient members of carrier conferences or discussion groups because prices are set so that all members will achieve some level of profitability. For this reason, they argue, antitrust immunity is a contributing factor to the chronic oversupply problems. By keeping prices artificially high, carriers are driven to over-invest in capacity and have less incentive to innovate and operate more efficiently. While they acknowledge that repealing antitrust exemption may cause some short-term instability, over the long-term, they believe the most efficient carriers will survive, resulting in lower rates. Rather than having carriers fix prices among themselves, shippers argue that the solution to rate volatility is for carriers to fix prices with their customers by means of time-volume service contracts. Shippers also contend that the claim by shipowners that their protection from antitrust laws is warranted because of the unique characteristics of their industry is not a valid argument. Shippers contend that railroads, air carriers, and pipeline carriers also have high fixed costs, provide regularly scheduled service, and experience seasonal and directional imbalances in cargo flow, but do not require collective price setting in order to prosper.

Port Truckers Drayage carriers (truckers that ―dray‖ shipping containers between the port and shipper or between the port and rail terminus) also oppose ocean antitrust immunity because they believe it gives ocean carriers an unfair advantage in negotiating rates and service parameters.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ISSUES FOR CONGRESS Congress could decide to follow the EU‘s lead and repeal antitrust immunity or it could take a ―wait-and-see‖ approach to observe any positive or negative effects that the repeal may have on the European liner trade. Both shippers and carriers generally believe that a repeal would likely result in lower freight rates, but also greater rate volatility with higher peaks and lower troughs.63 In addition to the lowest possible transport cost, importers and exporters seek some amount of rate stability for the same reason they seek stable exchange rates. Traders seek some assurance as to future market conditions in order to guide investment decisions. If antitrust immunity were to be repealed, in the short run, one could expect rate wars to ensue, with some carriers unable to survive. Over the long term, carrier consolidation could reduce their costs and shippers believe that service quality will improve. Deregulation of the airline, railroad, and trucking industries may provide, more or less, some insights into a further deregulated liner industry. According to most observers, some market turmoil in the short run can be expected, but there is far less consensus as to the long run outcome. One rationale for granting antitrust immunity to liner carriers is that other nations did the same and thus doing otherwise would put U.S. firms at a disadvantage, due to the international nature of the shipping business. In the case of Europe‘s decision to ban 63

―Continental Drift: End of Conferences in Europe May Produce More Volatility in Rates and Surcharges,‖ Journal of Commerce, July 14, 2008, pp. 10-13.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Reauthorization of the Federal Maritime Commission (FMC): Opportunity…

117

conferences, this argument can now be made in reverse. If repeal of antitrust immunity leads to lower rates in the European trades, then Congress might consider whether carriers would attempt to recoup their revenue losses in other trade lanes, such as the U.S. trans-Pacific. The largest carriers today participate in all the major trade routes. Beyond evaluating the commercial effects of repealing antitrust immunity, Congress may reconsider the objectives of U.S. liner shipping policy. The following four objectives are stated in current law:64 





Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.



to establish a nondiscriminatory regulatory process for the common carriage of goods by water in the foreign commerce of the United States with a minimum of government intervention and regulatory costs; to provide an efficient and economic transportation system in the ocean commerce of the United States that is, insofar as possible, in harmony with, and responsive to, international shipping practices; to encourage the development of an economically sound and efficient United Statesflag liner fleet capable of meeting national security needs; and to promote the growth and development of United States exports through competitive and efficient ocean transportation and by placing a greater reliance on the marketplace.

The first three of these objectives were established bythe Shipping Act of 1984 while the fourth objective was added with the Ocean Shipping Reform Act of 1998. In the past, U.S. liner policy sought to balance the interest of shippers with an interest in preserving the U.S. liner fleet for national security purposes. The virtual disappearance of the U.S. liner fleet in foreign trade raises the issue whether the interests of shippers should be given greater weight in shaping policy. Since continuing antitrust immunity appears to have had no effectin preservingaU.S. liner fleet, it would seem incapable of aiding in the reestablishment of a U.S. fleet. Other policy instruments, such as direct subsidies, could be more effective, but even these have had little success in the face of competition from ―flag of convenience‖ nations and lower cost foreign suppliers, whether their lower cost is due to comparative advantages or larger government subsidies. National security issues aside, Congress might consider whether the United States needs a U.S. liner fleet to protect its commercial interests. As identified earlier, there is a strong correlation between the home base of the world‘s leading container ship operators and economies that are highly dependent on their export industries. These nations may feel compelled to protect their liner fleets so that they can have some influence over their terms of trade. For instance, Japanese automobile manufacturers do not rely on Korean shipping lines to reach their overseas markets, nor do rival Korean automobile manufacturers rely on Japanese shipping lines. On the other hand, Weyerhaeuser, the second-largest U.S. exporter of containerized cargo, owns a liner carrier — Westwood Shipping, but it is contemplating the sale of this line.65 As overseas merchandise trade continues to grow in importance to the

64 65

46 U.S.C. App. 1701. ―Weyerhaeuser Considers Sale of Westwood Shipping,‖ Pacific Shipper, June 9, 2008, n.p.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

118

John Frittelli

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

U.S. economy (from 14.3% of GDP in 1984 to 22.7% in 2007),66 policymakers may consider whether fleet nationality is a relevant consideration. The ratio of goods exports to goods GDP (the proportion of GDP produced by the goods sectors) rose from 15% in 1970 to 43% in 2000.67 Yet containerized exports account for only 21% of the tonnage of U.S. waterborne exports.68 Dry and liquid bulk shipping, carrying grain and energy products, dominates outbound tonnage. Measured in dollar value, air cargo is the leading mode for U.S. overseas exports, carrying lighter and much higher-value products compared to ships. International trade brings about increased specialization, and thus the nation‘s imports look different than its exports and require different conveyances for efficient transport. In addition to balancing the interests of carriers and shippers, policymakers might consider the interests of both exporters and importers. As indicated above, one purpose of current policy is to promote U.S. exports but makes no mention of imports. While exports increase producer income and create jobs, imports increase consumer income by lowering prices. Between 1997 and 2004, for instance, the real price of audio equipment decreased by 26%, TV sets by 51%, toys by 34%, and clothing by 9%, all goods imported in containers.69 Policymakers may consider whether promoting both imports and exports are not equally legitimate goals of U.S. shipping policy. Given the large disparity in volume and total dollar value of import versus export containerized cargo, policymakers might consider which is producing the greatest income effect for the U.S. economy.

66

Bureau of Economic Analysis, National Economic Accounts, Table 1.1.10. Percentage Shares of GDP. U.S. Bureau of Transportation Statistics, U.S. International Trade and Freight Transportation Trends, 2003, p. 14. 68 U.S. Maritime Administration, U.S. Water Transportation Statistical Snapshot, May 2008, p. 1. 69 Economic Report of the President, February 2006, p. 156. 67

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 6

CRUISE VESSEL SAFETY AND SECURITY ACT OF 2009 

John D. Rockefeller

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

REPORT [To accompany S. 588] The Committee on Commerce, Science, and Transportation, to which was referred the bill (S. 588) to amend title 46, United States Code, to establish requirements to ensure the security and safety of passengers and crew on cruise vessels, and for other pur-poses, having considered the same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass.

PURPOSE OF THE BILL The Cruise Vessel Security and Safety Act of 2009 would increase the security and safety of cruise passengers by requiring safety enhancements onboard vessels and establishing clear reporting requirements for crimes that occur.

BACKGROUND AND NEEDS In the past several years, reports of sexual assault, rape, missing persons, and other serious crimes on cruise ships have increased. Problems with uncertain jurisdiction and inaccurate reporting of statistics for crimes on cruise ships inhibit a better understanding of 

This is an edited, reformatted and augmented version of a U. S. Government Printing Office publication dated September 2009.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

120

John D. Rockefeller

the scope of the issue. Jurisdiction over cruise ship crime can be complex. It is possible that a citizen of one nation can commit a crime against a citizen of a second nation, while underway on a vessel flagged by a third nation, and in the sovereign waters of a fourth. Foreign-flagged ships, which comprise all large passenger vessels that call on U.S. ports except for one passenger vessel oper-ating in the coastwise trade in Hawaii, are not subject to laws that apply to U.S.-flagged vessels or land based vacation destinations. Foreign-flagged vessels are subject to U.S. laws only when they op-erate in U.S. territorial waters, which extend 12 miles from the U.S. coastline, or when specific conditions are imposed on such ves-sels as a prerequisite to their entry into a U.S. port. Foreign-flagged vessels are subject to the laws of the countries in which they are registered and to applicable provisions from international treaties that address the safety of passenger vessels. Cruise ships with foreign registry are required by title 33 CFR section 120.220 to report alleged crimes occurring on board their vessels to U.S. au-thorities when they occur within U.S. territorial waters. In addition to jurisdictional challenges, prosecuting a crime that occurs on-board a ship is more difficult because of the absence of law enforce-ment officials trained to preserve evidence and investigate a crime scene. There is significant controversy about the accuracy and avail-ability of criminal security incidents and reports of missing per-sons. The Federal Bureau of Investigation (FBI) is the repository for the voluntary notifications and statistical compilation of data, but the numbers reported by the FBI and by the cruise lines are inconsistent and difficult to obtain. On April 1, 2007, the Cruise Lines International Association (CLIA), the FBI, and the Coast Guard implemented a voluntary agreement to streamline the re-porting of crimes on cruise ships under which CLIA members re-port by telephone any incidents involving an alleged serious viola-tion of U.S. to the nearest FBI Field Office or Legat. CLIA mem-bers must also provide a standardized written report. Reporting crimes that do not fall into any of the categories enumerated in the voluntary agreement, such as the theft of items valued at less than $10,000, is optional. Upon receipt of reports of alleged serious viola-tions of U.S. law, the agreement states that the FBI will determine on a case-by-case basis whether the reported information will be in-vestigated and whether the investigation will be conducted by a Field Office or Legat. The agreement specifies that each cruise line will make available all accommodations necessary to support an FBI investigation. There is currently no federal requirement for reporting crimes to the FBI outside of U.S. territorial waters, even if involving a U.S. passenger, nor a process for confirming that CLIA members notify authorities of all crimes.

SUMMARY OF PROVISIONS The Cruise Vessel Security and Safety Act of 2009 would require safety and security enhancements on cruise vessels to increase the safety of passengers. Requirements include installing peep holes in passenger room doors, installing security video cameras in targeted areas, limiting access to passenger rooms to select staff during spe-cific times, installing acoustic hailing and warning devices capable of communicating and enforcing the 500 yard security zone in High Risk Areas. It would also require the reporting of all serious crime incidents to relevant authorities and a method for a victim to vali-date a crime against them is appropriately reported.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Vessel Safety and Security Act of 2009

121

LEGISLATIVE HISTORY S. 588 was introduced on March 12, 2009 by Senator Kerry. A hearing on cruise ship safety was held on June 19, 2008. On July 6, 2009, Senator Kerry, Senator Rockefeller, Senator Lautenberg, and Senator Nelson offered an amendment in the nature of a substitute. On July 8, 2009, the Committee met in open executive session and ordered S.588 as amended reported favorably.

ESTIMATED COSTS In accordance with paragraph 11(a) of rule XXVI of the Standing Rules of the Senate and section 403 of the Congressional Budget Act of 1974, the Committee provides the following cost estimate, prepared by the Congressional Budget Office: JULY 29, 2009. Hon. JOHN D. ROCKEFELLER IV,

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Chairman, Committee on Commerce, Science, and Transportation, U.S. Senate, Washington, DC. DEAR MR. CHAIRMAN: The Congressional Budget Office has pre-pared the enclosed cost estimate for S. 588, the Cruise Vessel Secu-rity and Safety Act of 2009. If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Deborah Reis. Sincerely, DOUGLAS W. ELMENDORF. Enclosure. S. 588—Cruise Vessel Security and Safety Act of 2009 S. 588 would address the safety of passengers and crew members on cruise vessels. The bill would require the U.S. Coast Guard to promulgate safety regulations, develop training curricula for cruise-ship personnel, and establish certification and inspection procedures to facilitate enforcement. Based on information provided by the agency and assuming the availability of appropriated funds, CBO estimates that those activi-ties would cost about $5 million over the 2010–2014 period. The bill also would establish new criminal and civil penalties, but CBO esti-mates that any resulting new revenues (from penalties) or related direct spending (of criminal penalties from the Crime Victims Fund) would be less than $500,000 annually. The bill contains no intergovernmental mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would impose no costs on state, local, or tribal governments. S. 588 would impose private-sector mandates, as defined in UMRA, on owners and operators of certain cruise vessels that use U.S. ports. Cruise lines that own and operate those vessels would be required to meet certain safety standards, post information about the location of U.S. embassies and consulates for countries on the voyage itinerary, and limit crew access to passenger cabins. The bill also would require cruise lines to maintain a log

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

122

John D. Rockefeller

book of alleged crimes, report suspected criminal activities that occur on their vessels to the appropriate law enforcement authorities, and provide online access to data on criminal acts that occur on cruise vessels. In addition, the bill would require cruise lines to adhere to specific procedures when assisting victims of a sexual assault and to carry certain medical supplies and equipment designated for use in such cases. Lastly, cruise lines would be required to have at least one crewmember trained in crime scene investigation onboard while the vessel is in service. According to the Maritime Administration and the U.S. Coast Guard, between 125 and 150 cruise vessels that use U.S. ports would have to comply with the requirements in the bill. Industry representatives indicate that those vessels already comply with most of the bill‘s requirements and that any needed adjustments in current practice would likely be minor. CBO therefore expects that the incremental costs of the mandates would fall below the annual threshold established in UMRA for private-sector mandates ($139 million in 2009, adjusted annually for inflation). The CBO staff contacts for this estimate are Deborah Reis (for federal costs) and Jacob Kuipers (for the private-sector impact). The estimate was approved by Theresa Gullo, Deputy Assistant Director for Budget Analysis.

REGULATORY IMPACT STATEMENT

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In accordance with paragraph 11(b) of rule XXVI of the Standing Rules of the Senate, the Committee provides the following evaluation of the regulatory impact of the legislation, as reported:

Number of Persons Covered There are approximately 300 ocean-going cruise ships in operation worldwide. Each ship carries an average of 2,000 passengers and 950 crewmembers. It is estimated that 12.6 million Americans took a cruise from a U.S. port in 2008. This bill is intended to increase the safety and security of those 12.6 million Americans.

Economic Impact S. 588 would not have a negative economic impact on the United States. The cost associated with physically upgrading safety fea-tures onboard cruise ships is incurred by individual cruise lines. Any incidental costs associated with the crime reporting require-ments are consistent with existing data requirements and will not exceed what is already authorized.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Vessel Safety and Security Act of 2009

123

Privacy Given the sensitivity necessary if crimes do occur, S. 588 has specific provisions to protect and increase the privacy of crime victims onboard passenger vessels.

Paperwork Any additional paperwork for the Coast Guard or the Federal Bureau of Investigation that may result from the reporting require-ments is aimed at fostering a safer cruise environment and helping consumers make more informed decisions about their vacation choices. Any additional paperwork will contribute to the under-standing of crimes that occur onboard cruise ships and strengthen the ability to prosecute them.

CONGRESSIONALLY DIRECTED SPENDING In compliance with paragraph 4(b) of rule XLIV of the Standing Rules of the Senate, the Committee provides the following identification of congressionally directed spending items contained in the bill, as reported:

SECTION-BY-SECTION ANALYSIS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Section 1. Short Title; Table of Contents This section would title the bill the Cruise Vessel Security and Safety Act of 2009. Section 2. Findings This section would include the findings on cruise ship safety. Section 3. Cruise Vessel Security and Safety Requirements This section would create a new section 3507 and 3508 of title 46, United States Code, to implement security and safety require-ments for passenger vessels embarking or disembarking passengers from a port in the United States. Section 3507 would require various vessel design, equipment, and construction standards; the maintenance of video surveillance systems; the establishment of basic medical standards; log book and criminal reporting of certain crimes; and the publishing of a statistical compilation of such crimes after the FBI affirms an investigation is complete. The following provides a more specific description of each subsection. Subsection (a). This subsection would require cruise vessels, as defined in chapter 35 of title 46, United States Code, within eight-een months from enactment to be equipped with: handrails not less than 42 inches above the cabin deck, entry doors that include peep holes on each passenger stateroom and crew cabin, technology to detect passengers who have fallen

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

124

John D. Rockefeller

overboard, and acoustic warning and hailing devices for vessels operating in high risk areas. Any passenger vessel whose keel was laid after the date of enactment is required to be equipped with security latches and time-sensitive key technology on each passenger stateroom and crew cabin. Subsection (b). This subsection would require the owner of a ves-sel to maintain a video surveillance system to monitor and docu-ment crimes as they occur on the vessel and to provide evidence for the prosecution of such crimes. The video surveillance records would be required to be provided to law enforcement officials, upon request.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Subsection (c). This subsection would require the owner of a ves-sel to prominently post in each passenger stateroom and crew cabin information regarding the locations of the United States embassy and each United States consulate for each country the cruise ship will visit during the voyage. Subsection (d). This subsection would require the owner of a ves-sel to maintain adequate, in-date supplies of anti-retroviral and other medications used to prevent sexually transmitted diseases after a sexual assault, and maintain equipment and materials for performing a medical examination to evaluate a patient for trauma, treat injury, and collect forensic evidence. The subsection would require an individual to meet guidelines developed by the American College of Emergency Physicians who has received training in conducting forensic sexual assault examination to be onboard the vessel at all times. Further, the owner of the vessel would also be required to provide the victim of sexual assault free and immediate access to information for local law enforcement and the FBI and a private telephone line and Internet-accessible computer terminal by which the individual may confidentially access law enforcement officials, an attorney, or victim advocacy hotline services. Subsection (e). This subsection would prevent guest services counselors, psychologists, and any post-assault service providers from releasing information to the cruise line or any legal represent-atives thereof without prior approval in writing. Subsection (f). This subsection would require the establishment and implementation of procedures and restrictions concerning which crewmembers have access to passenger staterooms and the periods during which they have access. Subsection (g). This subsection would require the owner, charterer or master of a passenger vessel to maintain a log book of reports on reported deaths, missing individuals, and each signifi-cant alleged crime committed on the vessel and all passenger and crewmember complaints regarding theft, sexual harassment, and assault. The log book must be made available to the FBI, Coast Guard, or law enforcement officers upon request. This section would require the master of a passenger vessel to contact the near-est FBI Field Office or Legal Attache immediately after a crime oc-curs. Further, the passenger vessel operator must provide a written re-port of the incident to the Secretary of Transportation, the FBI and the Coast Guard. The reporting of an incident would

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Vessel Safety and Security Act of 2009

125

be required if the ship is owned in whole or in part by a United States person and the incident occurs when the vessel is within the admiralty and maritime jurisdiction of the United States, the incident con-cerns an offense by or against a United States national outside the jurisdiction of any nation, the incident occurs in the Territorial Seas of the United states, or the incident concerns a victim or per-petrator who is a United States national during a voyage that de-parted from or will arrive at a United States port. Additionally, the Secretary of Transportation would be required to maintain a statis-tical compilation of all incidents after the FBI confirms their inves-tigation is complete or unnecessary on a publically available website and all cruise lines operating in the United States would be required to link to this compilation from their website. Subsection (h). This subsection would set separate civil penalties for the failure to comply with the requirements of this Section and a criminal penalty for the willful violation of this section of not more than one year. Additionally, the Coast Guard is authorized to deny a vessel entry into the United States for failing to comply with this new section of law. Subsection (i). This subsection would require the Secretary to issue guidelines, training curricula, and inspection and certification procedures necessary to carry out this section within six months of enactment. Subsection (j). This subsection would permit the Secretary of Transportation and the Commandant of the Coast Guard authority to issue regulations necessary to carry out this section.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Subsection (k). This subsection would clarify that the require-ments would apply to any passenger vessel that embarks or dis-embarks passengers in the United States or is a vessel of the United States. Section 3508 of title 46, United States Code, would establish crime scene preservation training and certification for passenger vessel crew members. This section would require the Secretary of Transportation, in consultation the Director of the FBI, to develop a training curriculum for crewmembers and law enforcement officials of passenger vessels to educate them on the appropriate methods for the prevention, detection, evidence preservation, and reporting of criminal activities in the international maritime environment. This section would prevent any passenger vessel from entering a United States port, beginning two years after enactment, unless at least one crewmember onboard is certified as having successfully completely training in the collection of crime scene evidence on passenger vessels. Section 4. Study and Report on the Security Needs of Passenger Vessels This section would require the Secretary of the department in which the Coast Guard is operating to conduct a study on the secu-rity needs of a passenger vessel, and report any recommendations to Congress. The Coast Guard is expected to conduct outreach with industry stakeholders, victim advocacy organizations, and other professionals engaged in protecting the safety and security of pas-sengers and crew members on board large cruise ships.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

126

John D. Rockefeller

CHANGES IN EXISTING LAW In compliance with paragraph 12 of rule XXVI of the Standing Rules of the Senate, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new material is printed in italic, existing law in which no change is proposed is shown in roman): TITLE 46. SHIPPING SUBTITLE II. VESSELS AND SEAMEN PART B. INSPECTION AND REGULATION OF VESSELS CHAPTER 35. CARRIAGE OF PASSENGERS § 3507. Passenger vessel security and safety requirements (a) VESSEL DESIGN, EQUIPMENT, CONSTRUCTION, AND RETRO-FITTING REQUIREMENTS.—

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

(1) IN GENERAL.—Each vessel to which this subsection applies shall comply with the following design and construction stand-ards: (A) The vessel shall be equipped with ship rails that are located not less than 42 inches above the cabin deck. (B) Each passenger stateroom and crew cabin shall be equipped with entry doors that include peep holes or other means of visual identification. (C) For any vessel the keel of which is laid after the date of enactment of the Cruise Vessel Security and Safety Act of 2009, each passenger stateroom and crew cabin shall be equipped with— (i) security latches; and (ii) time-sensitive key technology. (D) The vessel shall integrate technology that can be used for capturing images of passengers or detecting passengers who have fallen overboard, to the extent that such technology is available. (E) The vessel shall be equipped with a sufficient number of operable acoustic hailing or other such warning devices to provide communication capability around the entire ves-sel when operating in high risk areas (as defined by the United States Coast Guard).

(2) FIRE SAFETY CODES.—In administering the requirements of paragraph (1)(C), the Secretary shall take into consideration fire safety and other applicable emergency requirements estab-lished by the U. S. Coast Guard and under international law, as appropriate. (3) EFFECTIVE DATE.— (A) IN GENERAL.—Except as provided in subparagraph (B), the requirements of paragraph (1) shall take effect 18 months after the date of enactment of the Cruise Vessel Se-curity and Safety Act of 2009. (B)LATCH AND KEY REQUIREMENTS.—The requirements of paragraph (1)(C) take effect on the date of enactment of the Cruise Vessel Security and Safety Act of 2009 (b) VIDEO RECORDING.—

(1) REQUIREMENT TO MAINTAIN SURVEILLANCE.—The owner of a vessel to which this section applies shall maintain a video surveillance system to assist in Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Vessel Safety and Security Act of 2009

127

documenting crimes on the ves-sel and in providing evidence for the prosecution of such crimes, as determined by the Secretary. (2) ACCESS TO VIDEO RECORDS.—The owner of a vessel to which this section applies shall provide to any law enforcement official performing official duties in the course and scope of an investigation, upon request, a copy of all records of video sur-veillance that the official believes may provide evidence of a crime reported to law enforcement officials. .

(c) SAFETY INFORMATION.—The owner of a vessel to which this section applies shall provide in each passenger stateroom, and post in a location readily accessible to all crew and in other places speci-fied by the Secretary, information regarding the locations of the United States embassy and each consulate of the United States for each country the vessel will visit during the course of the voyage. (d) SEXUAL ASSAULT.—The owner of a vessel to which this section applies shall—

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

(1) maintain on the vessel adequate, in-date supplies of anti-retroviral medications and other medications designed to prevent sexually transmitted diseases after a sexual assault; (2) maintain on the vessel equipment and materials for performing a medical examination in sexual assault cases to evaluate the patient for trauma, provide medical care, and preserve relevant medical evidence; (3) make available on the vessel at all times medical staff who have undergone a credentialing process to verify that he or she— (A) possesses a current physician‘s or registered nurse‘s license and— (i) has at least 3 years of post-graduate or post-registration clinical practice in general and emergency medicine; or (ii) holds board certification in emergency medicine, family practice medicine, or internal medicine; (B) is able to provide assistance in the event of an alleged sexual assault, has received training in conducting forensic sexual assault examination, and is able to promptly per-form such an examination upon request and provide proper medical treatment of a victim, including administration of antiretroviral medications and other medications that may prevent the transmission of human immunodeficiency virus and other sexually transmitted diseases; and (C) meets guidelines established by the American College of Emergency Physicians relating to the treatment and care of victims of sexual assault;

(4) prepare, provide to the patient, and maintain written documentation of the findings of such examination that is signed by the patient; and (5) provide the patient free and immediate access to— (A) contact information for local law enforcement, the Federal Bureau of Investigation, the United States Coast Guard, the nearest United States consulate or embassy, and the National Sexual Assault Hotline program or other third party victim advocacy hotline service; and (B) a private telephone line and Internet-accessible com-puter terminal by which the individual may confidentially access law enforcement officials, an attorney, and the infor-mation and support services available through the National Sexual Assault Hotline program or other third party victim advocacy hotline service.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

128

John D. Rockefeller (e) CONFIDENTIALITY OF SEXUAL ASSAULT EXAMINATION AND SUP-PORT INFORMATION.— The master or other individual in charge of a vessel to which this section applies shall—

(1) treat all information concerning an examination under subsection (d) confidential, so that no medical information may be released to the cruise line or other owner of the vessel or any legal representative thereof without the prior knowledge and ap-proval in writing of the patient, or, if the patient is unable to provide written authorization, the patient‘s nextof-kin, except that nothing in this paragraph prohibits the release of— (A) information, other than medical findings, necessary for the owner or master of the vessel to comply with the provisions of subsection (g) or other applicable incident reporting laws; (B) information to secure the safety of passengers or crew on board the vessel; or (C) any information to law enforcement officials performing official duties in the course and scope of an investigation; and

(2) treat any information derived from, or obtained in connection with, postassault counseling or other supportive services confidential, so no such information may be released to the cruise line or any legal representative thereof without the prior knowledge and approval in writing of the patient, or, if the pa-tient is unable to provide written authorization, the patient‘s next-of-kin. (f) CREW ACCESS TO PASSENGER STATEROOMS.—The owner of a vessel to which this section applies shall—

(1) establish and implement procedures and restrictions concerning—

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

(A) which crewmembers have access to passenger staterooms; and (B) the periods during which they have that access; and

(2) ensure that the procedures and restrictions are fully and properly implemented and periodically reviewed. (g) LOG BOOK AND REPORTING REQUIREMENTS.—

(1) IN GENERAL.—The owner of a vessel to which this section applies shall— (A) record in a log book, either electronically or otherwise, in a centralized location readily accessible to law enforcement personnel, a report on— (i) all complaints of crimes described in paragraph (3)(A)(i), (ii) all complaints of theft of property valued in excess of $1,000, and (iii) all complaints of other crimes, committed on any voyage that embarks or disembarks passengers in the United States; and (B) make such log book available upon request to any agent of the Federal Bureau of Investigation, any member of the United States Coast Guard, and any law enforcement officer performing official duties in the course and scope of an investigation.

(2) DETAILS REQUIRED.—The information recorded under paragraph (1) shall include, at a minimum— (A) the vessel operator; (B) the name of the cruise line; (C) the flag under which the vessel was operating at the time the reported incident occurred; (D) the age and gender of the victim and the accused assailant;

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Vessel Safety and Security Act of 2009

129

(E) the nature of the alleged crime or complaint, as applicable, including whether the alleged perpetrator was a passenger or a crewmember; (F) the vessel‘s position at the time of the incident, if known, or the position of the vessel at the time of the initial report; (G) the time, date, and method of the initial report and the law enforcement authority to which the initial report was made; (H) the time and date the incident occurred, if known; (I) the total number of passengers and the total number of crew members on the voyage; and (J) the case number or other identifier provided by the law enforcement authority to which the initial report was made.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

(3) REQUIREMENT TO REPORT CRIMES AND OTHER INFORMATION.— (A) IN GENERAL.—The owner of a vessel to which this sec-tion applies (or the owner‘s designee)— (i) shall contact the nearest Federal Bureau of Inves-tigation Field Office or Legal Attache by telephone as soon as possible after the occurrence on board the ves-sel of an incident involving homicide, suspicious death, a missing United States national, kidnapping, assault with serious bodily injury, any offense to which section 2241, 2242, 2243, or 2244(a) or (c) of title 18 applies, firing or tampering with the vessel, or theft of money or property in excess of $10,000 to report the incident; (ii) shall furnish a written report of the incident to an Internet based portal maintained by the Secretary of Transportation; (iii) may report any serious incident that does not meet the reporting requirements of clause (i) and that does not require immediate attention by the Federal Bureau of Investigation via the Internet based portal maintained by the Secretary of Transportation; and (iv) may report any other criminal incident involving passengers or crewmembers, or both, to the proper State or local government law enforcement authority. (B) INCIDENTS TO WHICH SUBPARAGRAPH (A) APPLIES.— Subparagraph (A) applies to an incident involving criminal activity if— (i) the vessel, regardless of registry, is owned, in whole or in part, by a United States person, regardless of the nationality of the victim or perpetrator, and the incident occurs when the vessel is within the admiralty and maritime jurisdiction of the United States and outside the jurisdiction of any State; (ii) the incident concerns an offense by or against a United States national committed outside the jurisdiction of any nation; (iii) the incident occurs in the Territorial Sea of the United States, regardless of the nationality of the vessel, the victim, or the perpetrator; or (iv) the incident concerns a victim or perpetrator who is a United States national on a vessel during a voyage that departed from or will arrive at a United States port.

(4) AVAILABILITY OF INCIDENT DATA VIA INTERNET.— (A) WEBSITE.—The Secretary of Transportation shall maintain a statistical compilation of all incidents described in paragraph (3)(A)(i) on an Internet site that provides a numerical accounting of the missing persons and alleged crimes recorded in each report filed under paragraph (3)(A)(i) that are no

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

130

John D. Rockefeller longer under investigation by the Fed-eral Bureau of Investigation. The data shall be updated no less frequently than quarterly, aggregated by cruise line, each cruise line shall be identified by name, and each crime shall be identified as to whether it was committed by a pas-senger or a crew member. (B) ACCESS TO WEBSITE.—Each cruise line taking on or discharging passengers in the United States shall include a link on its Internet website to the website maintained by the Secretary under subparagraph (A). (h) ENFORCEMENT.—

(1) PENALTIES.— (A) CIVIL PENALTY.—Any person that violates this section or a regulation under this section shall be liable for a civil penalty of not more than $25,000 for each day during which the violation continues, except that the maximum penalty for a continuing violation is $50,000. (B) CRIMINAL PENALTY.—Any person that willfully vio-lates this section or a regulation under this section shall be fined not more than $250,000 or imprisoned not more than 1 year, or both.

(2) DENIAL OF ENTRY.—The Secretary may deny entry into the United States to a vessel to which this section applies if the owner of the vessel—

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

(A) commits an act or omission for which a penalty may be imposed under this subsection; or (B) fails to pay a penalty imposed on the owner under this subsection. (i) PROCEDURES.—Within 6 months after the date of enactment of the Cruise Vessel Security and Safety Act of 2009, the Secretary shall issue guidelines, training curricula, and inspection and certifi-cation procedures necessary to carry out the requirements of this sec-tion. (j) REGULATIONS.—The Secretary of Transportation and the Com-mandant shall each issue such regulations as are necessary to im-plement this section. (k) APPLICATION.—

(1) IN GENERAL.—This section and section 3508 apply to a passenger vessel (as defined in section 2101(22)) that— (A) is authorized to carry at least 250 passengers; (B) has onboard sleeping facilities for each passenger; (C) is on a voyage that embarks or disembarks passengers in the United States; and (D) is not engaged on a coastwise voyage.

(2) FEDERAL AND STATE VESSELS.—This section and section 3508 do not apply to a vessel of the United States operated by the Federal Government or a vessel owned and operated by a State. (l) OWNER DEFINED.—In this section and section 3508, the term ‗‗owner‘‘ means the owner, charterer, managing operator, master, or other individual in charge of a vessel. § 3508. Crime scene preservation training for passenger vessel crewmembers (a) IN GENERAL.—Within 1 year after the date of enactment of the Cruise Vessel Security and Safety Act of 2009, the Secretary, in con-sultation with the Director of the Federal Bureau of Investigation and the Maritime Administration, shall develop training standards and curricula to allow for the certification of passenger vessel secu-rity personnel, crewmembers, and law enforcement officials on the appropriate

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Vessel Safety and Security Act of 2009

131

methods for prevention, detection, evidence preservation, and reporting of criminal activities in the international maritime environment. The Administrator of the Maritime Administration may certify organizations in the United States and abroad that offer the curriculum for training and certification under subsection (c). (b) MINIMUM STANDARDS.—The standards established by the Sec-retary under subsection (a) shall include—

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

(1) the training and certification of vessel security personnel, crewmembers, and law enforcement officials in accordance with accepted law enforcement and security guidelines, policies, and procedures, including recommendations for incorporating a background check process for personnel trained and certified in foreign ports; (2) the training of students and instructors in all aspects of prevention, detection, evidence preservation, and reporting of criminal activities in the international maritime environment; and (3) the provision or recognition of off-site training and certification courses in the United States and foreign countries to develop and provide the required training and certification described in subsection (a) and to enhance security awareness and security practices related to the preservation of evidence in response to crimes on board passenger vessels. (c) CERTIFICATION REQUIREMENT.—Beginning 2 years after the standards are established under subsection (b), no vessel to which this section applies may enter a United States port on a voyage (or voyage segment) on which a United States citizen is a passenger un-less there is at least 1 crewmember onboard who is certified as hav-ing successfully completed training in the prevention, detection, evi-dence preservation, and reporting of criminal activities in the inter-national maritime environment on passenger vessels under sub-section (a). (d) INTERIM TRAINING REQUIREMENT.—No vessel to which this section applies may enter a United States port on a voyage (or voy-age segment) on which a United States citizen is a passenger unless there is at least 1 crewmember onboard who has been properly trained in the prevention detection, evidence preservation and the reporting requirements of criminal activities in the international maritime environment. The owner of a such a vessel shall maintain certification or other documentation, as prescribed by the Secretary, verifying the training of such individual and provide such docu-mentation upon request for inspection in connection with enforce-ment of the provisions of this section. This subsection shall take ef-fect 1 year after the date of enactment of the Cruise Vessel Safety and Security Act of 2009 and shall remain in effect until superseded by the requirements of subsection (c). (e) CIVIL PENALTY.—Any person that violates this section or a reg-ulation under this section shall be liable for a civil penalty of not more than $50,000. (f) DENIAL OF ENTRY.—The Secretary may deny entry into the United States to a vessel to which this section applies if the owner of the vessel—

(1) commits an act or omission for which a penalty may be imposed under subsection (e); or (2) fails to pay a penalty imposed on the owner under subsection (e). Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 7

FRAMEWORK AGREEMENT ON INTEGRATED CROSSBORDER MARITIME LAW ENFORCEMENT OPERATIONS BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF CANADA *

Preamble

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Government Of The United States Of America And The Government Of Canada (Hereinafter "The Parties"); Considering That It Is In The Common Interest Of Both Countries To Enhan.Ce Their Border Co-Operation; Recognising The Principle Of Sovereignty Of States; Recognising The Importance Of Respecting Hndamental Rights And Freedoms Notably Privacy; Committed To The Prevention, Detection, Suppression, Investigation, And ProseCution Of Any Criminal Offence Or Violation Of Law Related To Border Enforcement Including, But Not Limited To, The Illicit Drug Trade, Migrant Smuggling, Trafficking Of Firearms, The Smuggling Of Counterfeit Goods And Money, And Terrorism;

*

This website information has been edited, reformatted http://www.publicsafety.gc.ca/prg/le/_fl/int-cross-brdr-martime-eng.pdf

and

augmented

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

from

134

Preamble

Desiring Integrated Cross-Border Maritime Law Enforcement Operations To Be Intelligence-Driven, Based On Joint United States-Canada Threat And Risk Assessment And Coordinated With Existing Cooperative Cross-Border Policing Programs And Activities; Recalling Their Continuing Cooperation And Record Of Successful Partnership In Pursuing Seamless Law Enforcement Operations At Their Shared Border; And Cognisant Of The Reciprocal Nature Of This Agreement; Have Agreed As Follows:

ARTICLE 1. PURPOSE OF THE AGREEMENT The purpose of this Agreement is to provide the Parties additional means in shared waterways to prevent, detect, suppress, investigate, and prosecute criminal offen- ces or violations of law including, but not limited to, illicit drug trade, migrant smuggling, trafficking of firearms, the smuggling of counterfeit goods and money, and terrorism.

ARTICLE 2. DEFINITIONS 1. "Designated cross-border maritime law enforcement officer" means: an individual designated or appointed pursuant to Article 6.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

2. "Host country" means: the Party in whose territory an activity in the context of integrated cross-border maritime law enforcement operations is taking place. 3. "Integrated cross-border maritime law enforcement operation" means: the deployment of a vessel crewed jointly by designated cross-border - maritime law enforcement officers fi-om the United States and Canada for law enforcement or related purposes in shared waterways. 4. "Participating agency" means: an agency directly participating in integrated crossborder maritime law enforcement operations. 5. "Shared waterways" means: undisputed areas of the sea or internal waters along the international boundary between the United States and Canada.

ARTICLE 3. SCOPE OF INTEGRATED CROSS-BORDER MARITIME LAW ENFORCEMENT OPERATIONS 1. Integrated cross-border maritime law enforcement operations shall only take place in shared waterways except as otherwise provided by this Article.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement...

135

2. Designated cross-border maritime law enforcement officers shall only enforce the domestic laws of the host country within which they find themselves as directed by a designated cross-border maritime law enforcement officer of the host country. 3. In urgent and exceptional circumstances designated cross-border maritime law enforcement officers may continue activities undertaken in the course of an integrated cross-border maritime law enforcement operation on land adjacent to shared waterways. 4. For the purposes of this Article, urgent and exceptional circumstances include circumstances in which a designated cross-border maritime law enforcement officer has reasonable grounds to suspect that the continuation of the activities undertaken in the course of integrated cross-border maritime law enforcement operations on land adjacent to shared waterways is necessary to prevent: (a) imminent bodily harm or death to any person; (b) the immediate and unlawful flight of persons liable to detention or arrest; or (c) The imminent loss or imminent destruction of evidence. 5. In all instances where designated cross-border maritime law enforcement officers continue activities on land adjacent to shared waterways they shall notify the appropriate host country law enforcement authorities as soon as operationally practicable.

ARTICLE 4. DIRECTION OF INTEGRATED CROSS-BORDER MARITIME LAW ENFORCEMENT OPERATIONS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Integrated cross-border maritime law enforcement operations shall only be carried out as directed by a designated cross-border maritime law enforcement officer of the host country.

ARTICLE 5. CENTRAL AUTHORITIES 1. The Parties designate the following central authorities to co-ordinate the implementation of this Agreement: (a) The Government of Canada designates the Commissioner of the Royal Canadian Mounted Police or his or her designate as its Central Authority. (b) The Government of the United States designates the Commandant of the United States Coast Guard or his or her designate as its Central Authority. 2. A Party may change the designated Central Authority upon written notification thereof to the other Party.

ARTICLE 6. DESIGNATION 1. The Central Authority for the United States may appoint or arrange for the appointment of an individual as a designated cross-border maritime law enforcement officer who is a:

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

136

Preamble (a) member of the Royal Canadian Mounted Police; or (b) police officer appointed or employed under the law of a province of Canada and who has: (i) been recommended for appointment by the Central Authority for Canada; and (ii) Satisfactorily completed all the required training for appointment as a designated cross-border maritime law enforcement officer in accordance with Article 7(l)(a). 2. The Central Authority for the United States may appoint or arrange for the appointment of an individual as a designated cross-border maritime law enforcement officer who is a pilot, co-pilot, observer or other member of the crew of an aircraft operated by the Royal Canadian Mounted Police or a police service established under the law of a province of Canada providing aerial support to an integrated crossborder maritime law enforcement operation who has: (a) been recommended for appointment by the Central Authority for Canada; and (b) Satisfactorily completed all the required training for appointment as a designated cross-border maritime law enforcement officer in accordance with Article 7(l)(b). 3. The Central Authority for Canada may appoint an individual as a designated crossborder maritime law enforcement officer who is: (a) a commissioned, warrant, or petty officer of the United States Coast Guard; or (b) a police officer or other law enforcement officer appointed or employed under the law of the United States of America or of a State of the United States of America and who has: (i) Been recommended for appointment by the Central Authority for the United States; and (ii) Satisfactorily completed all the required training for appointment as a designated cross-border maritime law enforcement officer in accordance with Article 7(l)(a). 4. The Central Authority for Canada may appoint an individual as a designated crossborder maritime law enforcement officer who is a pilot, co-pilot, observer or other member of the crew of an aircraft operated by the United States Coast Guard or a police service or other law enforcement agency of the United States of America or of a State of the United States of America providing aerial support to an integrated cross-border maritime law enforcement operation who has: (a) been recommended for appointment by the Central Authority for the United States; and (b) Satisfactorily completed all the required training for appointment as a designated cross-border maritime law enforcement officer in accordance with Article 7(l)(b). 5. A designation under this Article shall remain in force until it is suspended, revoked or withdrawn. 6. A cross-border maritime law enforcement officer designated under paragraphs 1 and 2 of this Article shall have the powers of a Customs Officer (excepted) in accordance with United States law while operating in the United States. 7. A cross-border maritime law enforcement officer designated under paragraphs 3 and 4 of this Article shall have the powers of a peace officer in accordance with Canadian law while operating in Canada. 8. Each Party shall establish and promulgate a single document setting out the policies that apply to integrated cross-border maritime law enforcement operations and training for and in their respective territories.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement...

137

ARTICLE 7. TRAINING 1. The Central Authorities shall coordinate the development of and approve a joint training program for designated cross-border maritime law enforcement officers that includes training on the applicable laws, regulations, constitutional considerations and policies of both Parties, and in particular, depending on the anticipated role of the integrated cross-border maritime law enforcement officer, those pertaining to:

(a) the use of force, marine safety, operational procedures and protection of informants and other sensitive information; and (b) aviation regulations and flight safety procedures. 2. The Central Authorities shall, from time to time, review the joint training program.

ARTICLE 8. CUSTOMS AND IMMIGRATION REPORTING To facilitate integrated cross-border maritime law enforcement operations, the Parties shall provide designated cross-border maritime law enforcement officers alternative mechanisms to meet customs and immigration reporting requirements between ports of entry.

ARTICLE 9. WORK PERMITS

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

To facilitate integrated cross-border maritime law enforcement operations, each Party shall, to the extent required by its domestic law, provide exemptions from work permit requirements to designated cross-border maritime law enforcement officers.

ARTICLE 10. CUSTODY OF PERSONS, VESSELS, OR THINGS DETAINED OR SEIZED 1. In all cases where a person, vessel, or thing is detained or seized, during the course of an integrated cross-border maritime law enforcement operation, such person, vessel, or thing shall be dealt with in accordance with the laws of the host country. 2. In no case shall any person, vessel, or thing detained or seized in the host country be removed from the host country except in accordance with the laws of the host country. 3. Paragraph 2 shall not apply in respect of any vessel or thing detained or seized in the host country in situations of operational or geographical necessity including when: (a) before delivering the vessel or thing that was lawfully seized to the place where the vessel or thing is to be delivered in the host country, designated integrated crossborder maritime law enforcement officers are required to participate in continuing integrated cross-border maritime law enforcement activities or respond to an emergency in the waters of the other Party;

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

138

Preamble (b) due to poor weather or mechanical difficulties with a vessel operated by designated integrated cross-border maritime law enforcement officers it is necessary to transit through the waters of the other Party in order to reach the nearest port; or, (c) the navigable shipping channels between the location in the host country where the vessel or thing was lawfully seized and the place where the vessel or thing is to be delivered in the host country pass through the waters of the other Party. 4. In situations of operational or geographical necessity described in paragraph 3 when a vessel or thing lawfully seized in the host country is transported through the waters of the other Party, that vessel or thing remains under the physical custody and control of the designated cross- border law enforcement officer of the host country.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ARTICLE 11. ACCOUNTABILITY 1. While engaging in integrated cross-border maritime law enforcement operations a designated cross-border maritime law enforcement officer shall be subject to the domestic laws of the Party in whose territory any criminal misconduct is alleged to have occurred and be subject to the jurisdiction of the courts of that Party subject to the rights and privileges that a law enforcement officer from the host country would be able to assert in the same situation and subject to the rights and privileges that the host country would be able to assert in the same situation. 2. Any claim submitted for damage, harm, injury, death or loss resulting from an integrated cross-border maritime law enforcement operation carried out by a Party under this Agreement shall be resolved in accordance with the domestic law of the Party to which the claim is brought and with international law. The Parties shall consult at the request of either Party with a view to resolving the matter and deciding any questions relating to compensation or payment. 3. Each Party shall make best efforts to ensure the cooperation of designated crossborder maritime law enforcement officers with any investigation, inquest or hearing that relates to an internal investigation or is held by a civilian oversight body into the exercise of enforcement powers by such officers, subject to the rights and privileges that a law enforcement officer from the country in which the investigation or proceeding takes place would be able to assert in the same situation and subject to the rights and privileges that country would be able to assert in the same situation. Upon request, each Party shall make best efforts to provide all unclassified documents and other unclassified information relating to a designated cross-border maritime law enforcement operation that is the subject of an investigation, inquest or hearing that relates to an internal investigation or is held by a civilian oversight body. 4. The participating agency that employs a designated cross-border maritime law enforcement officer shall be solely responsible for the professional review of and discipline procedures for its participating officers. If a participating agency undertakes any professional review and discipline procedure arising from crossborder maritime law enforcement activity, then the Central Authority shall ensure that any results fiom such a procedure are communicated to the other Central Authority.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement...

139

5. A Party may decline to cooperate under paragraphs 3 and 4 of this Article only where such cooperation would be contrary to or inconsistent with its public policy, substantive national interests, domestic law and regulations, or interferes with an ongoing investigation or prosecution. 6. Before denying or postponing cooperation the Party, through its Central Authority, shall: (a) promptly inform the other Party of the reason for considering denial or postponement; and (b) consult with the other Party to determine whether assistance may be given subject to such terms and conditions as the Party whose cooperation is at issue deems necessary.

ARTICLE 12. FIREARMS, AMMUNITIONS AND OTHER STANDARD LAW ENFORCEMENT WEAPONS While engaging in integrated cross-border maritime law enforcement operations in shared waterways a designated cross-border maritime law enforcement officer may carry firearms, ammunition, and other standard law enforcement weapons jointly approved by the Central Authorities for the United States and Canada.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ARTICLE 13. USE OF FORCE The designated cross-border maritime law enforcement officers shall use force only in strict accordance with the applicable laws and policies of the host country where the use of force occurs. In all cases only force that is reasonably necessary under the circumstances shall be used.

ARTICLE 14. INFORMATION SHARING 1. Subject to their domestic laws, the Parties shall assist each other in the course of integrated cross-border maritime law enforcement operations and may, for that purpose, share such information as may be necessary. 2. For the purposes of Article 14, "fk-ther sharing" means: the subsequent sharing of shared information by the receiving participating agency with, among others, a nonparticipating government agency or a foreign country. 3. Appropriate written arrangements shall be executed by the participating agencies regarding issues of use, further sharing, and correction of shared information, and regarding issues of storage and destruction of recorded shared information in accordance with the domestic laws of the Parties. 4. Unless required by its domestic laws or otherwise permitted by an arrangement executed pursuant to paragraph 3 of this Article, a participating agency shall not use or further share information shared pursuant to this Article for purposes other than

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

140

Preamble

5.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

6.

7.

8.

United States-Canada integrated cross-border law enforcement operations without the consent of the participating agency sharing the information. If a participating agency uses or shares information shared pursuant to this Article according to its domestic laws, it shall, subject to exigent circumstances, provide notice to the sharing participating agency prior to such use or sharing. In case of exigent circumstances, the participating agency using or sharing the information shall provide notice to the sharing participating agency as soon as reasonably possible. Designated cross-border maritime law enforcement officers shall collect information in strict accordance with the laws of the host country. A participating agency shall not use or hrther share information collected exclusively in the other Party's territory or waters by its officers for purposes other than Canada-United States integrated cross-border law enforcement operations without the consent of the Party in whose territory or waters the information was collected, unless the use or Wher sharing is required by its domestic laws, in which case the participating agency shall, subject to exigent circumstances, provide notice to the Party in whose territory or waters the information was collected prior to such use or sharing. In case of exigent circumstances, the participating agency using or sharing the information shall provide notice to the Party in whose territory or waters the information was collected as soon as reasonably possible. Nothing in this paragraph is intended to inhibit the Party in whose territory or waters the information was collected from sharing such information with the other Party pursuant to paragraph 1 of this Article or any other existing arrangements available to the Parties for the sharing of information. Notwithstanding paragraphs 3,4 and 5, the participating agency sharing the information or in whose territory or waters the information was collected may, in a particular instance, place additional restrictions on the use, sharing and further sharing of this information. Subject to its domestic laws, the participating agency which received or collected the information may accept and comply with any such restrictions or decline to receive or collect the information. Information sharing related to evidence and testimony that may be needed in any criminal investigation and subsequent prosecution or other proceeding resulting from integrated cross-border maritime law enforcement operations shall be conducted pursuant to Article 15 of this Agreement. (a) Nothing in this Agreement is intended to alter or supersede any law enforcement information exchange agreement in effect between the Parties. (b) Nothing in this Article is intended to preclude a Party from sharing information related to terrorism or weapons of mass destruction with non-participating agencies within its government according to its domestic laws.

ARTICLE 15. COOPERATION IN PROCEEDINGS 1. The participating agencies of the Parties shall fully cooperate in providing information, evidence and testimony that may be needed in any investigation and subsequent prosecution or other proceeding resulting from integrated cross-border maritime law enforcement operations.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement...

141

2. Cooperation shall include: (a) using best efforts to facilitate a request by the other Party to provide any relevant information or evidence in the possession or control of the participating agencies; and (b) using best efforts to facilitate the availability and appearance of any designated crossborder maritime law enforcement officer or other employee of a participating agency in order to give testimony relevant to any prosecution or proceeding resulting from integrated cross- border maritime law enforcement operations. 3. The Central Authority of each Party, or officials designated by the Central Authority, shall have the authority to make, receive and respond to requests for information, evidence and testimony under this Article. 4. If a competent judicial authority of a Party, in relation to a prosecution or other proceeding, issues a subpoena or order relating to the production of information or evidence referenced in paragraph 2(a), or the appearance of a witness referenced in paragraph 2(b), that Party may make a request for such information, evidence or appearance pursuant to paragraph 3, and the relevant participating agency shall use best efforts to facilitate such request. 5. When the Party receiving a request believes that information, evidence or testimony sought pursuant to this Article may include, or give rise to the disclosure of, information that it views as privileged or otherwise sensitive, it shall so advise the requesting Party. Either Party may request consultations to determine whether there are limitations on disclosure, assertions of privilege, restrictions on a potential witness's testimony or other conditions that may be sufficient to address the concerns of the Party receiving a request. 6. Before denying or postponing the provision or facilitation of information, evidence or testimony pursuant to this Article, the Party receiving a request shall, through its Central Authority and in consultation with its relevant prosecution authorities, promptly inform the Central Authority of the requesting Party of the reason for considering denial or postponement. The Central Authority of the requesting Party shall consult with its relevant prosecution authorities to determine whether it may accept the information, evidence or testimony subject to such terms and conditions as the other Party may deem necessary. If the requesting Party accepts assistance subject to such terms and conditions, then it shall comply with said terms and conditions. 7. Unless required by domestic law, a requesting Party shall not use or disclose information, evidence or testimony provided by the other Party other than for the purposes for which it was requested without the prior consent of the Central Authority of the other Party. However, information, evidence or testimony made public in such prosecution or proceeding may thereafter be used for any purpose. 8. Nothing in this Article shall limit or otherwise affect the rights and obligations of the Parties under other agreements or treaties governing cooperation and mutual assistance in the investigation, prosecution and suppression of crime.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

142

Preamble

ARTICLE 16. DISPUTE RESOLUTION 1. The Parties shall seek to resolve the disputes between them that may arise in interpreting or applying this Agreement through consultations between Central Authorities. 2. The Parties shall consult promptly at the request of either party concerning any dispute which has not been resolved by the central Authorities.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ARTICLE 17. EXPENSES AND OPERATIONAL COSTS 1. Subject to availability of hnds, the Parties shall assume the expenses and operational costs of their respective human and material resources. 2. Costs arising from the implementation of Article 15 of this Agreement shall be dealt with as follows: (a) The Requested Party shall assume all ordinary expenses of executing a request for cooperation within its boundaries, except: (i) fees of experts; (ii) expenses of translation, interpretation and transcription; and (iii) travel and incidental expenses of persons travelling to the Requested Party's territory to attend the execution of a request for cooperation. (b) A Requesting Party shall assume all ordinary expenses required to present evidence from the Requested Party in the Requesting Party's territory, including: (i) travel and incidental expenses of witnesses travelling to the Requesting Party's territory, including those of accompanying officials; and (ii) fees of experts. (c) If it becomes apparent that expenses of an extraordinary nature are required to hlfill a request for cooperation, the Parties shall consult to determine the terms and conditions under which the cooperation will continue. (d) The Parties shall agree on practical measures as appropriate for the reporting and payment of costs in conformity with this Article.

ARTICLE 18. EFFECT ON RIGHTS AND PRIVILEGES 1. This Agreement creates rights and obligations between the Parties. 2. Nothing in this Agreement: (a) creates, alters or confers the rights, privileges and benefits due to any person or entity in any administrative or judicial proceeding conducted under the jurisdiction of either Party; (b) shall give rise to a right on the part of a private party or entity to obtain, suppress or exclude any evidence or to impede the execution of a request for evidence; (c) shall in any way limit the rights and authority of any designated cross- border maritime law enforcement officer while operating in his or her country; (d) shall be construed to alter existing international agreements or other arrangements pertaining to Mutual Legal Assistance between the Parties; and

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Framework Agreement on Integrated Cross-Border Maritime Law Enforcement...

143

(e) shall constitute a precedent for any fbture discussions or negotiations between the Parties.

ARTICLE 19. ENTRY INTO FORCE, AMENDMENT AND TERMINATION OF THE AGREEMENT

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

1. This Agreement shall- enter into force upon an exchange of diplomatic notes confirming that the necessary internal procedures of each Party therefor have been completed. 2. Any amendment of this Agreement must be agreed in writing by the Parties and shall enter into force upon an exchange of diplomatic notes confirming that the necessary internal procedures of each Party therefor have been completed. 3. This Agreement may be terminated by either Party by written notification to the other Party. The termination shall take effect six months from the date of such notification. 4. Notwithstanding paragraph 3 of this Article, the obligations contained in Article 15 shall continue for prosecutions that have been commenced prior to the time of termination until such prosecutions are over. 5. In case of termination, the Government of the United States of America and the Government of Canada shall reach agreement on the return or destruction, or continued use and storage, of the information that has already been communicated between them. 6. The Parties agree to meet in order to review this Agreement at the end of five years from the date of its entry into force. IN WITNESS WHEREOF, the undersigned, duly authorised by their respective Government, have signed this Agreement. DONE at Detroit, this twenty-sixth day of May 2009, in duplicate, in the English and French languages both versions being equally authentic.

FOR THE GOVERNMENT OF CANADA:

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 8

OCEAN DUMPING ACT: A SUMMARY OF THE LAW



Claudia Copeland SUMMARY

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Marine Protection, Research, and Sanctuaries Act has two basic aims: to regulate intentional ocean disposal of materials, and to authorize related research. Permit and enforcement provisions of the law are often referred to as the Ocean Dumping Act. The basic provisions of the act have remained virtually unchanged since 1972, when it was enacted to establish a comprehensive waste management system toregulate disposal or dumping of all materials into marine waters that are within U.S. jurisdiction, although a number of new authorities have been added. This chapterpresents a summary of the law.

INTRODUCTION The Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA, P.L. 92-532) has two basic aims: to regulate intentional ocean disposal of materials, and to authorize related research. Title I of the act, which is often referred to as the Ocean Dumping Act, contains permit and enforcement provisions for ocean dumping. Research provisions are contained in Title II; Title IV authorizes a regional marine research program; and Title V addresses coastal water quality monitoring. The third title of the MPRSA, which authorizes the establishment of marine sanctuaries, is not addressed here. This chapterpresents a summary of the law, describing the essence of the statute. It is an excerpt from a larger ocument, CRS Report RL30798, Environmental Protection Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency (EPA). Many details and secondary provisions are omitted here, and even some major components 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated November 2008.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

146

Claudia Copeland

are only briefly mentioned. Further, this chapterdescribes the statute without discussing its implementation. Table 1 shows the original enactment and subsequent amendments. Table 2, at the end of this report, cites the major U.S. Code sections of the codified statute.

BACKGROUND The nature of marine pollution requires that it be regulated internationally, since once a pollutant enters marine waters, it knows no boundary. Thus, a series of regional treaties and conventions pertaining to local marine pollution problems and more comprehensive international conventions providing uniform standards to control worldwide marine pollution has evolved over the last 35 years. At the same time that key international protocols were being adopted and ratified by large number of countries worldwide (in the early 1970s), the United States enacted the MPRSA to regulate disposal of wastes in marine waters that are within U.S. jurisdiction. It utilizes a comprehensive and uniform waste management system to regulate disposal or dumping of all materials into ocean waters. Prior to 1972, U.S. marine waters had been used extensivelyas a convenient alternative to land-based sites for the disposal of various wastes such as sewage sludge, industrial wastes, and pipeline discharges and runoff.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Table 1. Ocean Dumping Act and Amendments (codified as 33 U.S.C. 1401-1445, 16 U.S.C. 1431-1447f, 33 U.S.C. 2801-2805) Year 1972 1974 1977 1980 1980 1982 1986 1986 1987 1988 1988 1988 1990 1992 1992

Act Marine Protection, Research, and Sanctuaries Act London Dumping Convention Implementation Authorization of appropriations Authorization of appropriations Authorization of appropriations Surface Transportation Assistance Act Budget Reconciliation Water Resources Development Act Water Quality Act of 1987 Ocean dumping research amendments Ocean Dumping Ban Act U.S. Public Vessel Medical Waste Anti-Dumping Act of 1988 Regional marine research centers National Coastal Monitoring Act Water Resources Development Act

Public Law Number P.L. 92-532 P.L. 93-254 P.L. 95-153 P.L. 96-381 P.L. 96-572 P.L. 97-424 P.L. 99-272, §§6061-6065 P.L. 99-662, §§211, 728, 1172 P.L. 100-4, §508 P.L. 100-627, title I P.L. 100-688, title I P.L. 100-688, title III P.L. 101-593, title III P.L. 102-567, title V P.L. 102-580, §§504-510

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

147

Ocean Dumping Act: A Summary of The Law

Table 2. Major U.S. Code Sections of the Marine Protection, Research, and Sanctuaries Act (codified as 33 U.S.C. 1401-1445, 16 U.S.C. 1431-1447f, 33 U.S.C. 2801-2805) Section Title

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

33 U.S.C. 1401 1401 Title I 1411 1412 1413 1414 1414a 1414b 1414c 1415 1416 1417 1418 1419 1420 1421 Title II1441 1442 1443 1444 1445 Title III Title IV-16 U.S.C. 1447 1447a 1447b 1447c 1447d 1447e 1447f Title V-33 U.S.C. 2801 2802 2803 2804 2805

Congressional findings, declaration of policy Definitions Permit Program Prohibited acts Environmental Protection Agency permits Corps of Engineers permits Permit conditions Special provisions regarding certain dumping sites Ocean dumping of sewage sludge and industrial waste Prohibition on disposal of sewage sludge at landfills on Staten Island Penalties Relationship to other laws Enforcement Regulations International cooperation Authorization of appropriations Annual report to Congress Research Programs Monitoring and research programs Research on long-term effects Research program - ocean dumping and other methods Annual reports Authorization of appropriations Marine Sanctuaries Regional Marine Research Programs Purposes Definitions Regional marine research boards Regional research plans Research grant program Report on research program Authorization of appropriations National Coastal Monitoring System Purposes Definitions Comprehensive coastal water quality monitoring program Report to Congress Authorization of appropriations

Ocean Dumping Act Sec. 2 Sec. 3 Sec. 101 Sec. 102 Sec. 103 Sec. 104 Sec. 104A Sec. 104B Sec. 104C Sec. 105 Sec. 106 Sec. 107 Sec. 108 Sec. 109 Sec. 111 Sec. 112 Sec. 201 Sec. 202 Sec. 203 Sec. 204 Sec. 205

Sec. 401 Sec. 402 Sec. 403 Sec. 404 Sec. 405 Sec. 406 Sec. 407 Sec. 501 Sec. 502 Sec. 503 Sec. 504 Sec. 505

Note: This table shows the major code sections. For more detail and to determine when a section was added, the reader should consult the printed version of the U.S. Code.

The basic provisions of the act have remained virtually unchanged since 1972, but many new authorities have been added. These newer parts include (1) research responsibilities for Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

148

Claudia Copeland

the Environmental Protection Agency (EPA); (2) specific direction that EPA phase out the disposal of ―harmful‖ sewage sludges and industrial wastes; (3) a ban on the ocean disposal of sewage sludge and industrial wastes by December 31, 1991; (4) inclusion of Long Island Sound within the purview of the act; and (5) inclusion of medical waste provisions. Authorizations for appropriations to support provisions of the law expired at the end of FY1997 (September 30, 1997). Authorities did not lapse, however, and Congress has continued to appropriate funds to carry out the act. Four federal agencies have responsibilities under the Ocean Dumping Act: EPA, the U.S. Army Corps of Engineers, the National Oceanic and Atmospheric Administration (NOAA), and the Coast Guard. EPA has primary authority for regulating ocean disposal of all substances except dredged spoils, which are under the authority of the Corps of Engineers. NOAA is responsible for long-range research on the effects of human-induced changes to the marine environment, while EPA is authorized to carry out research and demonstration activities related to phasing out sewage sludge and industrial waste dumping. The Coast Guard is charged with maintaining surveillance of ocean dumping.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Regulating Ocean Dumping Title I of the MPRSA prohibits all ocean dumping, except that allowed by permits, in any ocean waters under U.S. jurisdiction, by any U.S. vessel, or by any vessel sailing from a U.S. port. Certain materials, such as high-level radioactive waste, chemical and biological warfare agents, medical waste, sewage sludge, and industrial waste, may not be dumped in the ocean. Permits for dumping of other materials, except dredge spoils, can be issued by the EPA after notice and opportunity for public hearings where the Administrator determines that such dumping will not unreasonably degrade or endanger human health, welfare, the marine environment, ecological systems, or economic potentialities. The law regulates ocean dumping within the area extending 12 nautical miles seaward from the U.S. baseline and regulates transport of material by U.S.-flagged vessels for dumping into ocean waters. EPA designates sites for ocean dumping and specifies in each permit where the material is to be disposed. EPA prepares an annual report of ocean dumping permits for material other than dredged material.1 In 1977, Congress amended the act to require that dumping of municipal sewage sludge or industrial wastes that unreasonably degrade the environment cease by December 1981. (However, that deadline was not achieved, and amendments passed in 1988 extended the deadline to December 1991.) In 1986, Congress directed that ocean disposal of all wastes cease at the traditional 12-mile site off the New York/New Jersey coast (that is, it barred issuance of permits at the 12-mile site) and directed that disposal be moved to a new site 106 miles offshore. In 1988, Congress enacted several laws amending the Ocean Dumping Act, with particular emphasis on phasing out sewage sludge and industrial waste disposal in the ocean, which continued despite earlier legislative efforts. In 1992, Congress amended the act to permit states to adopt ocean dumping standards more stringent than federal standards and to require that permits conform with long-term 1

See [http://www.epa.gov/owow/oceans/regulatory/dumpdredged/annualreport.html].

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Ocean Dumping Act: A Summary of The Law

149

management plans for designated dumpsites, to ensurethatpermitted activities are consistent with expected uses of the site. Virtually all ocean dumping that occurs today is dredged material, sediments removed from the bottom of waterbodies in order to maintain navigation channels and berthing areas. Other materials that are dumped include vessels, fish wastes, and human remains. The Corps of Engineers issues permits for ocean dumping of dredged material, the bulk of which results from maintenance dredgingby the Corps itself or its contractors. According to data compiled by the Corps, each year an average of 70 million cubic yards of dredged sediment material is disposed of in the ocean at designated sites.2 Before sediments can be permitted to be dumped in the ocean, they are evaluated to ensure that the dumping will not cause significant harmful effects to human health or the marine environment. EPA is responsible for developing criteria to ensure that the ocean disposal of dredge spoils does not cause environmental harm. Permits for ocean disposal of dredged material are to be based on the same criteria utilized by EPA under other provisions of the act, and to the extent possible, EPA-recommended dumping sites are used. Where the only feasible disposition of dredged material would violate the dumping criteria, the Corps can request an EPA waiver. Amendments enacted in 1992 expanded EPA‘s role in permitting of dredged material by authorizing EPA to impose permit conditions or even deny a permit, if necessary to prevent environmental harm. Permits issued under the Ocean Dumping Act specify the type of material to be disposed, the amount to be transported for dumping, the location of the dumpsite, the length of time the permit is valid, and special provisions for surveillance. The EPA Administrator can require a permit applicant to provide information necessary for the review and evaluation of the application.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Enforcement The act authorizes EPA to assess civil penalties of not more than $50,000 for each violation of a permit or permit requirement, taking into account such factors as gravity of the violation, prior violations, and demonstrations of good faith; however, no penalty can be assessed until after notice and opportunity for a hearing. Criminal penalties (including seizure and forfeiture of vessels) for knowing violations of the act also are authorized. In addition, the act authorizes penalties for ocean dumping of medical wastes (civil penalties up to $125,000 for each violation and criminal penalties up to $250,000, five years in prison, or both). The Coast Guard is directed to conduct surveillance and other appropriate enforcement activities to prevent unlawful transportation of material for dumping, or unlawful dumping. Like many other federal environmental laws, the Ocean Dumping Act allows individuals to bring a citizen suit in U.S. district court against any person, including the United States, for violation of a permit or other prohibition, limitation, or criterion issued under Title I of the act. In conjunction with the Ocean Dumping Act, the Clean Water Act (CWA) regulates all discharges into navigable waters including the territorial seas. Although these two laws overlap in their coverage of dumping from vessels within the territorial seas, any question of conflict is essentially moot because EPA has promulgated a uniform set of standards (40 CFR 2

See [http://el.erdc.usace.army.mil/odd/default.htm].

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

150

Claudia Copeland

Parts 220-229). The Ocean Dumping Act preempts the CWA in coastal waters or open oceans, and the CWA controls in estuaries. States are permitted to regulate ocean dumping in waters within their jurisdiction under certain circumstances. The Ocean Dumping Act also requires the Administrator, to the extent possible, to apply the standards and criteria binding upon the United States that are stated in the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (known as the London Dumping Convention). This convention, signed by more than 85 countries, includes annexes that prohibit the dumping of mercury, cadmium and other substances such as DDT and PCBs, solid wastes and persistent plastics, oil, high-level radioactive wastes, and chemical and biologicalwarfare agents; and requires special permits for other heavy metals, cyanides and fluorides, and medium- and low-level radioactive wastes.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Research and Coastal Water Quality Monitoring Title II of the MPRSA authorizes two types of research: general research on ocean resources, under the jurisdiction of NOAA; and EPA research related to phasing out ocean disposal activities. NOAA is directed to carry out a comprehensive, long-term research program on the effects not only of ocean dumping, but also of pollution, overfishing, and other humaninduced changes on the marine ecosystem. Additionally, NOAA assesses damages from spills of petroleum and petroleum products. EPA‘s research role includes ―research, investigations, experiments, training, demonstrations, surveys, and studies‖ to minimize or end the dumping of sewage sludge and industrial wastes, along with research on alternatives to ocean disposal. Amendments in 1980 required EPA to study technological options for removing heavy metals and certain organic materials from New York City‘s sewage sludge. Title IV of the MPRSA established nine regional marine research boards for the purpose of developing comprehensive marine research plans, considering water quality and ecosystem conditions and research and monitoring priorities and objectives in each region. The plans, after approval by NOAA and EPA, are to guide NOAA in awarding research grant funds under this title of the act. Title V of the MPRSA established a national coastal water quality monitoring program. It directs EPA and NOAA jointly to implement a long-term program to collect and analyze scientific data on the environmental quality of coastal ecosystems, including ambient water quality, health and quality of living resources, sources of environmental degradation, and data on trends. Results of these activities (including intensive monitoring of key coastal waters) are intended to provide information necessary to design and implement effective programs under the Clean Water Act and Coastal Zone Management Act.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 9

AMERICA'S ADVOCATE FOR THE MARITIME INDUSTRY: MARITIME ADMINISTRATION POLICY PAPER 

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Maritime Administration Cabotage laws date back to the earliest days of our history. In 1789, Congress imposed added duties on goods transported by foreign vessels. The Navigation Acts of 1817 barred foreign vessels from domestic commerce. In 1886, Congress extended cabotage laws to passenger vessels, and in 1905 Congress retained U.S. build requirements for domestic shipping. The Merchant Marine Act of 1920 was enacted with the aim of maintaining a merchant marine of the best equipped and most suitable types of vessels owned and crewed by U.S. citizens, sufficient to carry the greater portion of U.S. commerce and serve as a naval or military auxiliary at time of war. Section 27 of that Act is known as The Jones Act Together with the Passenger Vessel Services Act of 1886, it reserves marine transportation of freight and passengers to U.S.-built, maintained, documented, owned and crewed vessels. Similar laws cover dredging in U.S. waters and towing and salvage op-erations.

BENEFITS The business opportunities provided by these laws have encouraged enormous investments in vessels and other marine transportation assets. Over the last 5 years, U.S. domestic carriers have significantly up-graded their fleets with 13 ocean-going vessels, 183 tugs, 3,942 barges, 64 offshore supply vessels and 69 ferries. The investments in new vessels



This is an edited, reformatted and augmented version of a Maritime Administration publication dated September 2006.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

152

Maritime Administration

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

have contrib-uted to a 35 percent increase in the value of the in-dustry‘s assets, the highest five-year growth in 25 years (Table 1).

In 2005, the U.S.-flag domestic trade fleet of 38,544 vessels transported about 933 million metric tons of cargo between U.S. ports. (Table 2) The domestic trades include cargoes moved on the oceans (including trade between the 48 contiguous states and Alaska, Hawaii, Puerto Rico and Guam), along the coasts, on the inland waterways and the Great Lakes. In addition to serving as an essential link in our na-tional transportation infrastructure, the domestic trade fleet is a critical component of America‘s military readiness. Eighty-five percent of the oceangoing ves-sels in the fleet are militarily useful. Furthermore, of the more than 60,000 water transpor-tation workers in the United States, 35,800 are mari-ners and nearly 8,000 these are qualified to crew deep-sea vessels and Ready Reserve Force and DOD sealift ships (Figure 1). The provisions of these laws must be maintained as an essential element of U.S. maritime policy that pro-vides important economic and national security bene-fits to the nation such as support of U.S. shipbuilding and repair industries and maintenance of a labor force of skilled American mariners.

Table 1. Water Transportation Investment, Fixed Assets and Labor, 2001-2005

Type 2001 2002 2003 2004 2005 3.6 4.9 4.8 7.4 8.1 Investment ($Bil) 35.6 37.6 39.7 43.7 48.0 Fixed Assets ($Bil.) 148. 5 147.8 148.3 147.9 154.5 Labor (000 Jobs) Transportation 54.0 52.6 54.5 56.4 60.6 Port Services 94.5 95.2 93.8 91.5 93.9 Sources: Bureau of Economic Analysis for fixed assets; Bureau of Labor Statistics

% Ch 2001-05 126 34.8 4.0 12.2 -0.6

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

America's Advocate for The Maritime Industry: Maritime Administration…

153

Table 2. U.S. Domestic Waterborne Fleets and Trades, 2001-2005 (Thousand Metric Tons) % Ch. 2001

2002

2003

2004

2005

39,315

38,698

37,665

37,806

38,544

-1.9

Ocean

132

120

112

105

106

-19.7

Lakers

52

51

50

49

48

-7.7

392

403

421

443

454

15.8

38,160

37,529

36,475

36,580

37,317

-2.1

579

595

607

629

619

6.9

Trades (000 MT)

945.7

926.3

921.9

949.9

933.4

-1.3

Ocean/Coastal

202.8

196.3

202.8

200.1

193.8

-4.4

Inland

562.3

551.6

553.0

568.1

566.1

0.7

Lakes

90.7

92.1

81.5

93.9

87.3

-3.7

Other*

89.9

86.3

84.6

87.8

86.2

-4.1

Fleets (vessels)

Offshore Supply Tugs/barges Ferries

2001-05

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

*Intraport and intraterritory trades. Source: Clarkson‘s Research, Vessel Registers for ocean fleet; U.S. Army Corps of Engineers, Transportation Lines of the United States for fleets; and Waterborne Commerce of the United States for trades.

Figure 1. Occupations in U.S. Water Transportation, 2006 (Thousand Employees)

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Maritime Administration

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

154

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

In: Maritime Law: Issues, Challenges and Implications ISBN: 978-1-61668-307-8 Editor: Jack W. Harris © 2011 Nova Science Publishers, Inc.

Chapter 10

CRUISE SHIP POLLUTION: BACKGROUND, LAWS AND REGULATIONS, AND KEY ISSUES 

Claudia Copeland Resources and Environmental Policy, Congressional Research Service

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

SUMMARY The cruise industry is a significant and growing contributor to the U.S. economy, providing more than $32 billion in benefits annually and generating more than 330,000 U.S. jobs, but also making the environmental impacts of its activities an issue to many. Although cruise ships represent a small fraction of the entire shipping industry worldwide, public attention to their environmental impacts comes in part from the fact that cruise ships are highly visible and in part because of the industry‘s desire to promote a positive image. Cruise ships carrying several thousand passengers and crew have been compared to ―floating cities,‖ and the volume of wastes that they produce is comparably large, consisting of sewage; wastewater from sinks, showers, and galleys (graywater); hazardous wastes; solid waste; oilybilge water; ballast water; and air pollution. The waste streams generated by cruise ships are governed by a number of international protocols (especially MARPOL) and U.S. domestic laws (including the Clean Water Act and the Act to Prevent Pollution from Ships), regulations, and standards, but there is no single law or rule. Some cruise ship waste streams appear to be well regulated, such as solid wastes (garbage and plastics) and bilge water. But there is overlap of some areas, and there are gaps in others. Some, such as graywater and ballast water, are not regulated (except in the Great Lakes), and concern is increasing about the impacts of these discharges on public health and the environment. In other areas, regulations apply, but critics argue that they are not stringent enough to address the problem—for example, with respect to standards for sewage discharges. Environmental 

This is an edited, reformatted and augmented version of a CRS Report for Congress publication dated November 2009.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

156

Claudia Copeland

advocates have raised concerns about the adequacy of existing laws for managing these wastes, and they contend that enforcement is weak. In 2000, Congress enacted legislation restricting cruise ship discharges in U.S. navigable waters within the state of Alaska. California, Alaska, and Maine have enacted state-specific laws concerning cruise ship pollution, and a few other states have entered into voluntary agreements with industry to address management of cruise ship discharges. Meanwhile, the cruise industry has voluntarily undertaken initiatives to improve pollution prevention, by adopting waste management guidelines and procedures and researching new technologies. Concerns about cruise ship pollution raise issues for Congress in three broad areas: adequacy of laws and regulations, research needs, and oversight and enforcement of existing requirements. Legislation to regulate cruise ship discharges of sewage, graywater, and bilge water nationally has been introduced in the 111th Congress (H.R. 3888 and S. 1820). This chapterdescribes the several types of waste streams that cruise ships may discharge and emit. It identifies the complex body of international and domestic laws that address pollution from cruise ships. It then describes federal and state legislative activity concerning cruise ships in Alaskan waters and activities in a few other states, as well as current industry initiatives to manage cruise ship pollution. Issues for Congress are discussed.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

INTRODUCTION More than 53,000 commercial vessels—tankers, bulk carriers, container ships, barges, and passenger ships—travel the oceans and other waters of the world, carrying cargo and passengers for commerce, transport, and recreation. Their activities are regulated and scrutinized in a number of respects by international protocols and U.S. domestic laws, including those designed to protect against discharges of pollutants that could harm marine resources, other parts of the ambient environment, and human health. However, there are overlaps of some requirements, gaps in other areas, geographic differences in jurisdiction based on differing definitions, and questions about the adequacy of enforcement. Public attention to the environmental impacts of the maritime industry has been especially focused on the cruise industry, in part because its ships are highly visible and in part because of the industry‘s desire to promote a positive image. It represents a relatively small fraction of the entire shipping industry worldwide. As of July 2009, passenger ships (which include cruise ships and ferries) composed about 13% of the world shipping fleet.1 The cruise industry is a significant and growing contributor to the U.S. economy, providing nearly $38 billion in total benefits annually and generating more than 350,000 U.S. jobs,2 but also making the environmental impacts of its activities an issue to many. Since 1990, the average annual growth rate in the number of cruise passengers worldwide has been 7.4%, and in 2007, cruises hosted an estimated 12.6 million passengers. The worldwide cruise ship fleet consists of more than 230 ships, and the majority are foreign-flagged, with Liberia and 1

Lloyd‘s Maritime Information Services, on the website of the Maritime International Secretaries Services, Shipping and World Trade Facts, at http://www.marisec.org/shippingfacts/keyfacts/. 2 Cruise Line Industry Association, ―Profile of the U.S. Cruise Industry,‖ 2009 edition, http://www.cruising.org/ press/sourcebook2009/profile_cruise_industry.cfm

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

157

Panama being the most popular flag countries.3 Foreign-flag cruise vessels owned by six companies account for nearly 95% of passenger ships operating in U.S. waters. Each year, the industry adds new ships to the total fleet, vessels that are bigger, more elaborate and luxurious, and that carry larger numbers of passengers and crew. Over the past two decades, the average ship size has been increasing at the rate of roughly 90 feet every five years. The average ship entering the market from 2008 to 2011 will be more than 1,050 feet long and will weigh more than 130,000 tons.4 To the cruise ship industry, a key issue is demonstrating to the public that cruising is safe and healthy for passengers and the tourist communities that are visited by their ships. Cruise ships carrying several thousand passengers and crew have been compared to ―floating cities,‖ in part because the volume of wastes produced and requiring disposal is greater than that of many small cities on land. During a typical one-week voyage, a large cruise ship (with 3,000 passengers and crew) is estimated to generate 210,000 gallons of sewage; 1 million gallons of graywater (wastewater from sinks, showers, and laundries); more than 130 gallons of hazardous wastes; 8 tons of solid waste; and 25,000 gallons of oily bilge water.5 Those wastes, if not properly treated and disposed of, can pose risks to human health, welfare, and the environment. Environmental advocates have raised concerns about the adequacy of existing laws for managing these wastes, and suggest that enforcement of existing laws is weak. A 2000 General Accounting Office (GAO) report focused attention on problems of cruise vessel compliance with environmental requirements.6 GAO found that between 1993 and 1998, foreignflag cruise ships were involved in 87 confirmed illegal discharge cases in U.S. waters. A few of the cases included multiple illegal discharge incidents occurring over the six-year period. GAO reviewed three major waste streams (solids, hazardous chemicals, and oily bilge water) and concluded that 83% of the cases involved discharges of oil or oil-based products, the volumes of which ranged from a few drops to hundreds of gallons. The balance of the cases involved discharges of plastic or garbage. GAO judged that 72% of the illegal discharges were accidental, 15% were intentional, and 13% could not be determined. The 87 cruise ship cases represented 4% of the 2,400 illegal discharge cases by foreign-flag ships (including tankers, cargo ships and other commercial vessels, as well as cruise ships) confirmed during the six years studied by GAO. Although cruise ships operating in U.S. waters have been involved in a relatively small number of pollution cases, GAO said, several have been widely publicized and have led to criminal prosecutions and multimillion-dollar fines.

3

U.S. Environmental Protection Agency, ―Cruise Ship White Paper,‖ August 22, 2000, p. 3. Hereafter, EPA White Paper. 4 Bell, Tom, ―Experts: Mega-birth Needed for Cruise Ships,‖ Portland Press Herald, September 28, 2007. 5 Bureau of Transportation Statistics, Department of Transportation, ―Summary of Cruise Ship Waste Streams,‖ http://www.bts.gov/publications/maritime_trade_and_transportation/2002/html/environmental_issues_table_0 1.html. 6 U.S. General Accounting Office (now the Government Accountability Office), Marine Pollution: Progress Made to Reduce Marine Pollution by Cruise Ships, but Important Issues Remain, GAO/RCED-00-48, February 2000. 70 pp. Hereafter, 2000 GAO Report.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

158

Claudia Copeland

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In 2000, a coalition of 53 environmental advocacy groups petitioned the Environmental Protection Agency (EPA) to take regulatory action to address pollution by cruise ships.7 The petition called for an investigation of wastewater, oil, and solid waste discharges from cruise ships. In response, EPA agreed to study cruise ship discharges and waste management approaches. As part of that effort, in 2000 EPA issued a background document with preliminary information and recommendations for further assessment through data collection and public information hearings.8 Subsequently, in December 2008, the agency released a cruise ship discharge assessment report as part of its response to the petition. This chapter summarized information on cruise ship waste streams and findings of recent data collection activities (especially from cruise ships operating in Alaskan waters). It also identified options to address ship discharges.9 This chapter presents information on issues related to cruise ship pollution. It begins by describing the several types of waste streams and contaminants that cruise ships may generate and release. It identifies the complex body of international and domestic laws that address pollution from cruise ships, as there is no single law in this area. Some wastes are covered by international standards, some are subject to U.S. law, and for some there are gaps in law, regulation, or possibly both. The report then describes federal and state legislative activity concerning cruise ships in Alaskan waters and activities in a few other states. Cruise ship companies have taken a number of steps to prevent illegal waste discharges and have adopted waste management plans and practices to improve their environmental operations. Environmental critics acknowledge these initiatives, even as they have petitioned the federal government to strengthen existing regulation of cruise ship wastes. Environmental groups endorsed legislation in the 109th and 110th Congresses (the Clean Cruise Ship Act) that would require stricter standards to control wastewater and other discharges from cruise ships. Similar legislation has been introduced in the 111th Congress (the Clean Cruise Ship Act, H.R. 3888 and S. 1820).

CRUISE SHIP WASTE STREAMS Cruise ships generate a number of waste streams that can result in discharges to the marine environment, including sewage, graywater, hazardous wastes, oily bilge water, ballast water, and solid waste. They also emit air pollutants to the air and water. These wastes, if not properly treated and disposed of, can be a significant source of pathogens, nutrients, and toxic substances with the potential to threaten human health and damage aquatic life. It is important, however, to keep these discharges in some perspective, because cruise ships represent a small—although highly visible—portion of the entire international shipping industry, and the waste streams described here are not unique to cruise ships. However, 7

Bluewater Network, Petition to the Administrator, U.S. Environmental Protection Agency, March 17, 2000. The petition was amended in 2000 to request that EPA also examine air pollution from cruise ships; see discussion below (page 16). 8 EPA White Paper. 9 U.S. Environmental Protection Agency, Office of Wetlands, Oceans, and Watersheds, ―Cruise Ship Discharge Assessment Report,‖ EPA842-R-07-005, December 2008. Hereafter, EPA Discharge Assessment Report.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

159

particular types of wastes, such as sewage, graywater, and solid waste, may be of greater concern for cruise ships relative to other seagoing vessels, because of the large numbers of passengers and crew that cruise ships carry and the large volumes of wastes that they produce. Further, because cruise ships tend to concentrate their activities in specific coastal areas and visit the same ports repeatedly (especially Florida, California, New York, Galveston, Seattle, and the waters of Alaska), their cumulative impact on a local scale could be significant, as can impacts of individual large-volume releases (either accidental or intentional).

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Blackwater is sewage, wastewater from toilets and medical facilities, which can contain harmful bacteria, pathogens, diseases, viruses, intestinal parasites, and harmful nutrients. Discharges of untreated or inadequately treated sewage can cause bacterial and viral contamination of fisheries and shellfish beds, producing risks to public health. Nutrients in sewage, such as nitrogen and phosphorous, promote excessive algal growth, which consumes oxygen in the water and can lead to fish kills and destruction of other aquatic life. Cruise ships generate, on average, 8.4 gallons/day/person of sewage, and a large cruise ship (3,000 passengers and crew) can generate an estimated 15,000 to 30,000 gallons per day of sewage.10 Graywater is wastewater from the sinks, showers, galleys, laundry, and cleaning activities aboard a ship. It can contain a variety of pollutant substances, including fecal coliform bacteria, detergents, oil and grease, metals, organics, petroleum hydrocarbons, nutrients, food waste, and medical and dental waste. Sampling done by EPA and the state of Alaska found that untreated graywater from cruise ships can contain pollutants at variable strengths, and that it can contain levels of fecal coliform bacteria one to three times greater than is typically found in untreated domestic wastewater. Cruise ships generate, on average, 67 gallons/day/person of graywater (or, approximately 200,000 gallons per day for a 3,000person cruise ship); by comparison, residential graywater generation is estimated to be 51 gallons/person/day.11 Graywater has potential to cause adverse environmental effects because of concentrations of nutrients and other oxygen-demanding materials, in particular. Graywater is typically the largest source of liquid waste generated by cruise ships (90%-95% of the total). Solid waste generated on a ship includes glass, paper, cardboard, aluminum and steel cans, and plastics. It can be either non-hazardous or hazardous in nature. Solid waste that enters the ocean may become marine debris, and it can then pose a threat to marine organisms, humans, coastal communities, and industries that utilize marine waters. Cruise ships typically manage solid waste by a combination of source reduction, waste minimization, and recycling. However, as much as 75% of solid waste is incinerated on board, and the ash typically is discharged at sea, although some is landed ashore for disposal or recycling. Marine mammals, fish, sea turtles, and birds can be injured or killed from entanglement with plastics and other solid waste that may be released or disposed off of cruise ships. On 10

EPA Discharge Assessment Report, p. 2-1. The Ocean Conservancy, ―Cruise Control, A Report on How Cruise Ships Affect the Marine Environment,‖ May 2002, p. 13. Hereafter, ―Cruise Control.‖ 11 EPA Discharge Assessment Report, pp. 3-5 - 3-6. Amounts of graywater generated on cruise ships vary widely and generally are not measured, according to EPA.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

160

Claudia Copeland

average, each cruise ship passenger generates at least two pounds of non-hazardous solid waste per day and disposes of two bottles and two cans.12 With large cruise ships carrying several thousand passengers, the amount of waste generated in a day can be massive. For a large cruise ship, about 8 tons of solid waste are generated during a one-week cruise.13 It has been estimated that 24% of the solid waste generated by vessels worldwide (by weight) comes from cruise ships.14 Most cruise ship garbage is treated on board (incinerated, pulped, or ground up) for discharge overboard. When garbage must be off-loaded (for example, because glass and aluminum cannot be incinerated), cruise ships can put a strain on port reception facilities, which are rarely adequate to the task of serving a large passenger vessel (especially at non-North American ports).15 Cruise ships produce hazardous wastes from a number of on-board activities and processes, including photo processing, dry-cleaning, and equipment cleaning. Types of waste include discarded and expired chemicals, medical waste, batteries, fluorescent lights, and spent paints and thinners, among others. These materials contain a wide range of substances such as hydrocarbons, chlorinated hydrocarbons, heavy metals, paint waste, solvents, fluorescent and mercury vapor light bulbs, various types of batteries, and unused or outdated pharmaceuticals. Although the quantities of hazardous waste generated on cruise ships are relatively small, their toxicity to sensitive marine organisms can be significant. Without careful management, these wastes can find their way into graywater, bilge water, or the solid waste stream. On a ship, oil often leaks from engine and machinery spaces or from engine maintenance activities and mixes with water in the bilge, the lowest part of the hull of the ship. Oil, gasoline, and byproducts from the biological breakdown of petroleum products can harm fish and wildlife and pose threats to human health if ingested. Oil in even minute concentrations can kill fish or have various sub-lethal chronic effects. Bilge water also may contain solid wastes and pollutants containing high amounts of oxygen-demanding material, oil, and other chemicals, as well as soaps, detergents, and degreasers used to clean the engine room. These chemicals can be highly toxic, causing mortality to marine organisms if the chemicals are discharged. Amounts vary, depending on the size of the ship, but large vessels often have additional waste streams that contain sludge or waste oil and oily water mixtures that can inadvertently get into the bilge. A typical large cruise ship will generate an average of eight metric tons of oily bilge water for each 24 hours of operation.16 To maintain ship stability and eliminate potentially hazardous conditions from oil vapors in these areas, the bilge spaces need to be flushed and periodically pumped dry. However, before a bilge can be cleared out and the water discharged, the oil that has been accumulated needs to be extracted from the 12

The Center for Environmental Leadership in Business, ―A Shifting Tide, Environmental Challenges and Cruise Industry Responses,‖ p. 14. Hereafter, ―Shifting Tide.‖ 13 Bluewater Network, ―Cruising for Trouble: Stemming the Tide of Cruise Ship Pollution,‖ March 2000, p. 5. Hereafter, ―Cruising for Trouble.‖ A report prepared for an industry group estimated that a 3,000-person cruise ship generates 1.1 million gallons of graywater during a seven-day cruise. Don K. Kim, ―Cruise Ship Waste Dispersion Analysis Report on the Analysis of Graywater Discharge,‖ presented to the International Council of Cruise Lines, September 14, 2000. 14 National Research Council, Committee on Shipboard Wastes, Clean Ships, Clean Ports, Clean Oceans: Controlling Garbage and Plastic Wastes at Sea (National Academy Press, 1995), Table 2-3, pp. 38-39. 15 Ibid., p. 126. 16 ―Shifting Tide,‖ p. 16.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

161

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

bilge water, after which the extracted oil can be reused, incinerated, and/or off-loaded in port. If a separator, which is normally used to extract the oil, is faulty or is deliberately bypassed, untreated oily bilge water could be discharged directly into the ocean, where it can damage marine life. According to EPA, bilge water is the most common source of oil pollution from cruise ships.17 A number of cruise lines have been charged with environmental violations related to this issue in recent years. Cruise ships, large tankers, and bulk cargo carriers use a tremendous amount of ballast water to stabilize the vessel during transport. Ballast water is often taken on in the coastal waters in one region after ships discharge wastewater or unload cargo, and discharged at the next port of call, wherever more cargo is loaded, which reduces the need for compensating ballast. Thus, it is essential to the proper functioning of ships (especially cargo ships), because the water that is taken in compensates for changes in the ship‘s weight as cargo is loaded or unloaded, and as fuel and supplies are consumed. However, ballast water discharge typically contains a variety of biological materials, including plants, animals, viruses, and bacteria. These materials often include non-native, nuisance, exotic species that can cause extensive ecological and economic damage to aquatic ecosystems. Ballast water discharges are believed to be the leading source of invasive species in U.S. marine waters, thus posing public health and environmental risks, as well as significant economic cost to industries such as water and power utilities, commercial and recreational fisheries, agriculture, and tourism.18 Studies suggest that the economic cost just from introduction of pest mollusks (zebra mussels, the Asian clam, and shipworms) to U.S. aquatic ecosystems is about $2.2 billion per year.19 These problems are not limited to cruise ships, and there is little cruise-industry specific data on the issue. Further study is needed to determine the role of cruise ships in the overall problem of introduction of non-native species by vessels. Air pollution from cruise ships is generated by diesel engines that burn high sulfur content fuel, producing sulfur dioxide, nitrogen oxide, and particulate matter, in addition to carbon monoxide, carbon dioxide, and hydrocarbons. Diesel exhaust has been classified by EPA as a likely human carcinogen. EPA recognizes that emissions from marine diesel engines contribute to unhealthy air and failure to meet air quality standards, as well as visibility degradation, haze, acid deposition, and eutrophication and nitrification of water.20 EPA estimates that ocean-going vessels account for about 10% of mobile source nitrogen oxide emissions, 24% of mobile source particulate emissions, and 80% of mobile source sulfur dioxide emissions in the United States in 2009. These percentages are expected to increase as other sources of these pollutants are controlled. Emissions from marine diesel 17

EPA Discharge Assessment Report, p. 4-11. Statement of Catherine Hazelwood, The Ocean Conservancy, ―Ballast Water Management: New International Standards and NISA Reauthorization,‖ Hearing, House Transportation and Infrastructure Subcommittee on Water Resources and Environment, 108th Cong., 2nd sess., March 25, 2004. 19 David Pimentel, Rodolfo Zuniga, and Doug Morrison, ―Update on the Environmental and Economic Costs Associated with Alien-invasive Species in the United States,‖ Ecological Economics, vol. 52 (2005), pp. 273288. 20 U.S. Environmental Protection Agency, ―Control of Emissions from New Marine Compression-Ignition Engines at or Above 30 Liters per Cylinder; Proposed Rule,‖ 74 Federal Register 44447, 44459, August 28, 2009. This equates to 6% of nitrogen oxides emissions nationally from all sources, 3% of particulate matter nationally, and 11% of sulfur dioxide nationally. 18

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

162

Claudia Copeland

engines can be higher on a port-specific basis. Ships are also an important source of greenhouse gas (GHG) pollutants. The International Maritime Organization estimates that international shipping contributed 2.7% of global carbon dioxide emissions in 2007.21 Vessels also emit significant amounts of black carbon and nitrogen oxides, which contribute to climate change. One source of environmental pressures on maritime vessels recently has come from states and localities, as they assess the contribution of commercial marine vessels to regional air quality problems when ships are docked in port. A significant portion of vessel emissions occur at sea, but they can impact areas far inland and regions without large commercial ports, according to EPA. Again, there is little cruise-industry specific data on this issue. They comprise only a small fraction of the world shipping fleet, but cruise ship emissions may exert significant impacts on a local scale in specific coastal areas that are visited repeatedly. Shipboard incinerators also burn large volumes of garbage, plastics, and other waste, producing ash that must be disposed of. Incinerators may release toxic emissions as well.

APPLICABLE LAWS AND REGULATIONS The several waste streams generated by cruise ships are governed by a number of internationalprotocols and U.S. domestic laws, regulations and standards, which are described in this section, but there is no single law or regulation. Moreover, there are overlaps in some areas of coverage, gaps in other areas, and differences in geographic jurisdiction, based on applicable terms and definitions.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

International Legal Regime The International Maritime Organization (IMO), a body of the United Nations, sets international maritime vessel safety and marine pollution standards. It consists of representatives from 152 major maritime nations, including the United States. The IMO implements the 1973 International Convention for the Prevention of Pollution from Ships, as modified by the Protocol of 1978, known as MARPOL 73/78. Cruise ships flagged under countries that are signatories to MARPOL are subject to its requirements, regardless of where they sail, and member nations are responsible for vessels registered under their respective nationalities.22 Six Annexes of the Convention cover the various sources of pollution from ships and provide an overarching framework for international objectives, but they are not sufficient alone to protect the marine environment from waste discharges, without ratification and implementation by sovereign states.

21

International Maritime Organization, Marine Environment Pollution Committee, Prevention of Air Pollution from Ships, Second IMO GHG Study 2009, April 2, 2009, http://wwwimo.org/includes/blastData Only .asp/data_id % 3D26046/4-7.pdf. Contributions from cruise ships were not estimated. 22 The majority of cruise ships are foreign-flagged, primarily in Liberia and Panama. Both of these countries have ratified all six of the MARPOL annexes. For information, see http://www.imo.org/.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues    

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.



163

Annex I deals with regulations for the prevention of pollution by oil. Annex II details the discharge criteria and measures for the control of pollution by noxious liquid substances carried in bulk. Annex III contains general requirements for issuing standards on packing, marking, labeling, and notifications for preventing pollution by harmful substances. Annex IV contains requirements to control pollution of the sea by sewage. Annex V deals with different types of garbage, including plastics, and specifies the distances from land and the manner in which they may be disposed of. Annex VI sets limits on sulfur oxide, nitrogen oxide, and other emissions from marine vessel operations and prohibits deliberate emissions of ozone-depleting substances.

In order for IMO standards to be binding, they must first be ratified by a total number of member countries whose combined gross tonnage represents at least 50% of the world‘s gross tonnage, a process that can be lengthy. Parties/countries that have ratified an Annex may propose amendments; MARPOL specifies procedures and timelines for parties to adopt amendments and for amendments to take effect. All six Annexes have been ratified by the requisite number of nations; the most recent is Annex VI, which took effect in May 2005. The United States has ratified Annexes I, II, III, V, and VI, but has taken no action regarding Annex IV. The country where a ship is registered (flag state) is responsible for certifying the ship‘s compliance with MARPOL‘s pollution prevention standards. IMO also has established a large number of other conventions, addressing issues such as ballast water management, and the International Safety Management Code, with guidelines for passenger safety and pollution prevention. Each signatory nation is responsible for enacting domestic laws to implement the convention and effectively pledges to comply with the convention, annexes, and related laws of other nations. In the United States, the Act to Prevent Pollution from Ships (APPS, 33 U.S.C. §§1905-1915, and regulations at 33 CFR Subchapter O—Pollution) implements the provisions of MARPOL and the annexes to which the United States is a party. The most recent U.S. action concerning MARPOL occurred in April 2006, when the Senate acceded to ratification of Annex VI, which regulates air pollution (Treaty Doc. 108-7, Exec. Rept. 10913). Following that approval, in July 2008, Congress approved legislation to implement the standards in Annex VI, through regulations to be promulgated by EPA in consultation with the U.S. Coast Guard (P.L. 110-280). Even before enactment of this legislation, the United Stated participated in international negotiations to strengthen MARPOL Annex VI , which resulted in amendments to Annex VI in October 2008 (see discussion of ―Air Pollution,‖ below).23 APPS applies to all U.S.-flagged ships anywhere in the world and to all foreign-flagged vessels operating in navigable waters of the United States or while at port under U.S. jurisdiction. The Coast Guard has primary responsibility to prescribe and enforce regulations necessary to implement APPS in these waters. The regulatory mechanism established in

23

For additional information, see CRS Report RL34548, Air Pollution and Greenhouse Gas Emissions from Ships, by James E. McCarthy.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

164

Claudia Copeland

APPS to implement MARPOL is separate and distinct from the Clean Water Act and other federal environmental laws. One of the difficulties in implementing MARPOL arises from the very international nature of maritime shipping. The country that the ship visits can conduct its own examination to verify a ship‘s compliance with international standards and can detain the ship if it finds significant noncompliance. Under the provisions of the Convention, the United States can take direct enforcement action under U.S. laws against foreign-flagged ships when pollution discharge incidents occur within U.S. jurisdiction. When incidents occur outside U.S. jurisdiction or jurisdiction cannot be determined, the United States refers cases to flag states, in accordance with MARPOL. The 2000 GAO report documented that these procedures require substantial coordination between the Coast Guard, the State Department, and other flag states and that, even when referrals have been made, the response rate from flag states has been poor.24

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Domestic Laws and Regulations In the United States, several federal agencies have some jurisdiction over cruise ships in U.S. waters, but no one agency is responsible for or coordinates all of the relevant government functions. The U.S. Coast Guard and EPA have principal regulatory and standard-setting responsibilities, and the Department of Justice prosecutes violations of federal laws. In addition, the Department of State represents the United States at meetings of the IMO and in international treaty negotiations and is responsible for pursuing foreign-flag violations. Other federal agencies have limited roles and responsibilities. For example, the National Oceanic and Atmospheric Administration (NOAA, Department of Commerce) works with the Coast Guard and EPA to report on the effects of marine debris. The Animal and Plant Health Inspection Service (APHIS) is responsible for ensuring quarantine inspection and disposal of food-contaminated garbage (these APHIS responsibilities are part of the Department of Homeland Security). In some cases, states and localities have responsibilities as well. This section describes U.S. laws and regulations that apply to cruise ship discharges.

Sewage The Federal Water Pollution Control Act, or Clean Water Act (CWA), is the principal U.S. law concerned with limiting polluting activity in the nation‘s streams, lakes, estuaries, and coastal waters. The act‘s primary mechanism for controlling pollutant discharges is the National Pollutant Discharge Elimination System (NPDES) program, authorized in Section 402. In accordance with the NPDES program, pollutant discharges from point sources—a term that includes vessels—are prohibited unless a permit has been obtained. While sewage is defined as a pollutant under the act, sewage discharges from cruise ships and other vessels are statutorily exempt from this definition and are therefore exempt from the requirement to obtain an NPDES permit. 24

22000 GAO Report, pp. 19-21.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

165

Marine Sanitation Devices Section 312 of the Clean Water Act seeks to address this gap by prohibiting the dumping of untreated or inadequately treated sewage from vessels into the navigable waters of the United States (defined in the act as within 3 miles of shore). Cruise ships are subject to this prohibition. It is implemented jointly by EPA and the Coast Guard. Under Section 312, commercial and recreational vessels with installed toilets are required to have marine sanitation devices (MSDs), which are designed to prevent the discharge of untreated sewage. EPA is responsible for developing performance standards for MSDs, and the Coast Guard is responsible for MSD design and operation regulations and for certifying MSD compliance with the EPA rules. MSDs are designed either to hold sewage for shore-based disposal or to treat sewage prior to discharge. Beyond 3 miles, raw sewage can be discharged. The Coast Guard regulations cover three types of MSDs (33 CFR Part 159). Large vessels, including cruise ships, use either Type II or Type III MSDs. In Type II MSDs, the waste is either chemically or biologically treated prior to discharge and must meet limits of no more than 200 fecal coliform per 100 milliliters and no more than 150 milligrams per liter of suspended solids. Type III MSDs store wastes and do not treat them; the waste is pumped out later and treated in anonshore system or discharged outside U.S. waters. Type I MSDs use chemicals to disinfect the raw sewage prior to discharge and must meet a performance standard for fecal coliform bacteria of not greater than 1,000 per 100 milliliters and no visible floating solids. Type I MSDs are generally only found on recreational vessels or others under 65 feet in length. The regulations, which have not been revised since 1976, do not require ship operators to sample, monitor, or report on their effluent discharges. Critics point out deficiencies with this regulatory structure as it affects cruise ships and other large vessels. First, the MSD regulations only cover discharges of bacterial contaminants and suspended solids, while the NPDES permit program for other point sources typically regulates many more pollutants such as chemicals, pesticides, heavy metals, oil, and grease that may be released by cruise ships as well as land-based sources. Second, sources subject to NPDES permits must comply with sampling, monitoring, recordkeeping, and reporting requirements, which do not exist in the MSD rules. In addition, the Coast Guard, responsible for inspecting cruise ships and other vessels for compliance with the MSD rules, has been heavily criticized for poor enforcement of Section 312 requirements. In its 2000 report, the GAO said that Coast Guard inspectors ―rarely have time during scheduled ship examinations to inspect sewage treatment equipment or filter systems to see if they are working properly and filtering out potentially harmful contaminants.‖ GAO reported that a number of factors limit the ability of Coast Guard inspectors to detect violations of environmental law and rules, including the inspectors‘ focus on safety, the large size of a cruise ship, limited time and staff for inspections, and the lack of an element of surprise concerning inspections.25 The Coast Guard carries out a wide range of responsibilities that encompass both homeland security (ports, waterways, and coastal security, defense readiness, drug and migrant interdiction) and non-homeland security (search and rescue, marine environmental protection, fisheries enforcement, aids to navigation). Since the September 11 terrorist attacks on the United States, the Coast Guard has focused more of

25

2000 GAO Report, pp. 34-35, 13.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

166

Claudia Copeland

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

its resources on homeland security activities.26 One likely result is that less of the Coast Guard‘s time and resources are available for vessel inspections for MSD or other environmental compliance. Annex IV of MARPOL was drafted to regulate sewage discharges from vessels. It generally requires that ships be equipped with either a sewage treatment plant, sewage comminuting (i.e., to grind or macerate solids) and disinfecting system, or a sewage holding tank. It has entered into force internationally and would apply to cruise ships that are flagged in ratifying countries, but because the United States has not ratified Annex IV, it is not mandatory that ships follow it when in U.S. waters. However, its requirements are minimal, even compared with U.S. rules for MSDs. Annex IV requires that vessels be equipped with a certified sewage treatment system or holding tank, but it prescribes no specific performance standards. Within three miles of shore, Annex IV requires that sewage discharges be treated by a certified MSD prior to discharge. Between three and 12 miles from shore, sewage discharges must be treated by no less than maceration or chlorination; sewage discharges beyond 12 miles from shore are unrestricted. Vessels are permitted to meet alternative, less stringent requirements when they are in the jurisdiction of countries where less stringent requirements apply. In U.S. waters, cruise ships and other vessels must comply with the regulations implementing Section 312 of the Clean Water Act. On some cruise ships, especially many of those that travel in Alaskan waters, sewage is treated using Advanced Wastewater Treatment (AWT) systems that generally provide improved screening, treatment, disinfection, and sludge processing as compared with traditional Type II MSDs. AWTs are believed to be very effective in removing pathogens, oxygen demanding substances, suspended solids, oil and grease, and particulate metals from sewage, but only moderately effective in removing dissolved metals and nutrients (nitrogen and phosphorous).27

No Discharge Zones Section 312 has another means of addressing sewage discharges, through establishment of nodischarge zones (NDZs) for vessel sewage. A state may completely prohibit the discharge of both treated and untreated sewage from all vessels with installed toilets into some or all waters over which it has jurisdiction (up to 3 miles from land). To create a nodischarge zone to protect waters from sewage discharges by cruise ships and other vessels, the state must apply to EPA under one of three categories. 

NDZ based on the need for greater environmental protection, and the state demonstrates that adequate pumpout facilities for safe and sanitary removal and treatment of sewage from all vessels are reasonably available. As of 2009, this category of designation has been used for waters representing part or all of the waters of 26 states, including a number of inland states.

26

The Homeland Security Act of 2002 (P.L. 107-296) transferred the entirety of the Coast Guard from the Department of Transportation to the Department of Homeland Security. For discussion, see archived CRS Report RS21125, Homeland Security: Coast Guard Operations—Background and Issues for Congress. 27 EPA Discharge Assessment Report, p. 2-13.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues 



167

NDZ for special waters found to have a particular environmental importance (e.g., to protect environmentally sensitive areas such as shellfish beds or coral reefs); it is not necessary for the state to show pumpout availability. This category of designation has been used twice (state waters within the Florida Keys National Marine Sanctuary and the Boundary Waters Canoe area of Minnesota). NDZ to prohibit the discharge of sewage into waters that are drinking waterintake zones; it is not necessary for the state to show pumpout availability. This category of designation has been used to protect part of the Hudson River in New York.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In the 2008 Discharge Assessment Report, EPA identified several possible options to address sewage from cruise ships, such as revising standards for the discharge of treated sewage effluent, restricting discharge of treated or untreated sewage effluent (e.g., no discharge out to 3 miles from shore), requiring sampling and testing of wastewater treatment equipment to ensure that its meets applicable standards, requiring certain reports by cruise ship operators, or imposing uniform requirements on all ships as a condition of port entry and within U.S. waters.28

Gray water Under current federal law, gray water is not defined as a pollutant, nor is it generally considered to be sewage. There are no separate federal effluent standards for gray water discharges. The Clean Water Act only includes gray water in its definition of sewage for the express purpose of regulating commercial vessels in the Great Lakes, under the Section 312 MSD requirements. However, those rules prescribe limits only for bacterial contaminant content and total suspended solids in gray water. Pursuant to a state law in Alaska, gray water must be treated prior to discharge into that state‘s waters (see ―Alaskan Activities,‖ below). In addition, in 2008, EPA issued a CWA general permit applicable to large commercial vessels, including cruise ships, that contains restrictions on gray water discharges similar to those that apply in Alaskan waters (see ―EPA‘s Response: General Permits for Vessels,‖ below). The National Marine Sanctuaries Act (16 USC § 1431 et seq.) authorizes NOAA to designate National Marine Sanctuaries where certain discharges, including gray water, may be restricted to protect sensitive ecosystems or fragile habitat, such as coral. NOAA regulations do restrict such discharges from cruise ships and other vessels in areas such as the Monterey Bay National Marine Sanctuary and the Florida Keys National Marine Sanctuary. In the 2008 Discharge Assessment Report, EPA identified several options or alternatives for addressing gray water discharges, such as establishing and/or revising standards for gray water discharges, placing geographic restrictions on gray water discharges, requiring monitoring and reporting, or imposing penalties for failure to meet gray water standards.29

28

EPA Discharge Assessment Report, pp. 2-43-2-45. Throughout this report, EPA states that the agency has not determined that any of the options or alternatives are necessary, feasible, or warranted, or that EPA or any other entity has the legal authority to implement the options. 29 Ibid., pp. 3-32-3-33.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

168

Claudia Copeland

Solid Waste Cruise ship discharges of solid waste are governed by two laws. Title I of the Marine Protection, Research and Sanctuaries Act (MPRSA, 33 U.S.C. §§ 1402-1421) applies to cruise ships and other vessels and makes it illegal to transport garbage from the United States for the purpose of dumping it into ocean waters without a permit or to dump any material transported from a location outside the United States into U.S. territorial seas or the contiguous zone (within 12 nautical miles from shore) or ocean waters. EPA is responsible for issuing permits that regulate the disposal of materials at sea (except for dredged material disposal, for which the U.S. Army Corps of Engineers is responsible). Beyond waters that are under U.S. jurisdiction, no MPRSA permit is required for a cruise ship to discharge solid waste. The routine discharge of effluent incidental to the propulsion of vessels is explicitly exempted from the definition of dumping in the MPRSA.30 The Act to Prevent Pollution from Ships (APPS, 33 U.S.C. §§ 1901-1915) and its regulations, which implement U.S.-ratified provisions of MARPOL Annex V, also apply to cruise ships. APPS prohibits the discharge of all garbage within 3 nautical miles of shore, certain types of garbage within 12 nautical miles offshore, and plastic anywhere. As described above, it applies to all vessels, whether seagoing or not, regardless of flag, operating in U.S. navigable waters and the Exclusive Economic Zone (EEZ). It is administered by the Coast Guard which carries out inspection programs to insure the adequacy of port facilities to receive offloaded solid waste. According to EPA, there have been discharges of solid waste and plastic from cruise ships.31 The IMO also is reportedly evaluating the need to amend Annex V of MARPOL. In the 2008 Discharge Assessment Report, EPA identified several possible options to address solid waste from cruise ships, such as increasing the use and range of on-board garbage handling and treatment technologies (e.g., compactors and incinerators); initiating a rulemaking to provide stronger waste management plans than the current voluntary cruise industry practices; prohibiting discharge of incinerator ash from cruise ships into U.S. waters; expanding port reception facilities to accept solid waste; or ensuring that there is no discharge of solid waste into the marine environment through monitoring and sanctions.32 Hazardous Waste The Resource Conservation and Recovery Act (RCRA, 42 U.S.C. §§ 6901-6991k) is the primary federal law that governs hazardous waste management through a ―cradle-to-grave‖ program that controls hazardous waste from the point of generation until ultimate disposal. The act imposes management requirements on generators, transporters, and persons who treat or dispose of hazardous waste. Under this act, a waste is hazardous if it is ignitable, corrosive, reactive, or toxic, or appears on a list of about 100 industrial process waste streams and more than 500 discarded commercial products and chemicals. Treatment, storage, and disposal 30

The 1988 Shore Protection Act (33 U.S.C. §§ 2601-2603) prohibits vessels from transporting unicipal or commercial waste in U.S. coastal waters without a permit issued by the Department of Transportation. It was intended to minimize trash, medical debris, and potentially harmful materials from being deposited in U.S. coastal waters. However, its provisions exclude waste generated by a vessel during normal operations and thus do not apply to cruise ships. 31 EPA Discharge Assessment Report, p. 5-10 (citing the 2000 GAO Report). 32 EPA Discharge Assessment Report, pp. 5-14-5-16.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

169

facilities are required to have permits and comply with operating standards and other EPA regulations. The owner or operator of a cruise ship may be a generator and/or a transporter of hazardous waste, and thus subject to RCRA rules. Issues that the cruise ship industry may face relating to RCRA include ensuring that hazardous waste is identified at the point at which it is considered generated; ensuring that parties are properly identified as generators, storers, treaters, or disposers; and determining the applicability of RCRA requirements to each. Hazardous wastes generated onboard cruise ships are stored onboard until the wastes can be offloaded for recycling or disposal in accordance with RCRA.33 A range of activities on board cruise ships generate hazardous wastes and toxic substances that would ordinarily be presumed to be subject to RCRA—for example, for use of chemicals in cleaning and painting, or in passenger services such as beauty parlors and photo labs. Cruise ships are potentially subject to RCRA requirements to the extent that chemicals used for operations such as ship maintenance and passenger services result in the generation of hazardous wastes. However, it is not entirely clear what regulations apply to the management and disposal of these wastes.34 RCRA rules that cover small-quantity generators (those that generate more than 100 kilograms but less than 1,000 kilograms of hazardous waste per month) are less stringent than those for large-quantity generators (generating more than 1,000 kilograms per month), and it is unclear whether cruise ships are classified as large or small generators of hazardous waste. Moreover, some cruise companies argue that they generate less than 100 kilograms per month and therefore should be classified in a third category, as ―conditionally exempt small-quantity generators,‖ a categorization that allows for less rigorous requirements for notification, recordkeeping, and the like.35 A release of hazardous substances by a cruise ship or other vessel could also theoretically trigger the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or Superfund, 42 U.S.C. §§ 9601-9675), but it does not appear to have been used in response to cruise ship releases. CERCLA requires that any person in charge of a vessel shall immediately notify the National Response Center of any release of a hazardous substance in amounts above regulatory thresholds (other than discharges in compliance with a federal permit under the Clean Water Act or other environmental law, as these discharges are exempted) into waters of the United States or the contiguous zone. Notification is required for releases in amounts determined by EPA that may present substantial danger to the public health, welfare, or the environment. EPA has identified 500 wastes as hazardous substances under these provisions and issued rules on quantities that are reportable, covering releases as small as 1 pound of some substances (40 CFR Part 302). CERCLA authorizes the President (acting through the Coast Guard in coastal waters) to remove and provide for remedial action relating to the release. In addition to RCRA, hazardous waste discharges from cruise ships are subject to Section 311 of the Clean Water Act, which prohibits the discharge of hazardous substances in harmful quantities into or upon the navigable waters of the United States, adjoining shorelines, or into or upon the waters of the contiguous zone. 33

Ibid., pp. 6-4, 6-7. 3EPA White Paper, p. 10. 35 ―Cruising for Trouble,‖ p. 5. 34

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

170

Claudia Copeland

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In the 2008 Discharge Assessment Report, EPA identified several possible options for addressing hazardous wastes, such as establishing standards of BMPs to decrease contaminants in hazardous wastes or the volume of hazardous waste on cruise ships; beginning a rulemaking to prohibit the discharge of hazardous materials into U.S. waters out to the 200-mile Exclusive Economic Zone; increasing inspections on cruise ships; or increasing inspections of authorized facilities that receive cruise ship hazardous wastes.36

Bilge Water Section 311 of the Clean Water Act, as amended by the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701-2720), applies to cruise ships and prohibits discharge of oil or hazardous substances in harmful quantities into or upon U.S. navigable waters, or into or upon the waters of the contiguous zone, or which may affect natural resources in the U.S. EEZ (extending 200 miles offshore). Coast Guard regulations (33 CFR §151.10) prohibit discharge of oil within 12 miles from shore, unless passed through a 15-ppm oil water separator, and unless the discharge does not cause a visible sheen. Beyond 12 miles, oil or oily mixtures can be discharged while a vessel is proceeding en route and if the oil content without dilution is less than 100 ppm. Vessels are required to maintain an Oil Record Book to record disposal of oily residues and discharges overboard or disposal of bilge water. In addition to Section 311 requirements, the Act to Prevent Pollution from Ships (APPS) implements MARPOL Annex I concerning oil pollution. APPS applies to all U.S. flagged ships anywhere in the world and to all foreign flagged vessels operating in the navigable waters of the United States, or while at a port under U.S. jurisdiction. To implement APPS, the Coast Guard has promulgated regulations prohibiting the discharge of oil or oily mixtures into the sea within 12 nautical miles of the nearest land, except under limited conditions. However, because most cruise lines are foreign registered and because APPS only applies to foreign ships within U.S. navigable waters, the APPS regulations have limited applicability to cruise ship operations. In addition, most cruise lines have adopted policies that restrict discharges of machinery space waste within three miles from shore. In the 2008 Discharge Assessment Report, EPA identified several possible options for addressing oily bilge water from cruise ships, such as establishing standards; conducting research on alternative lubricants; treating effluents from oily bilge water to meet specified standards and establishing penalties for failure to meet standards; banning discharge of bilge water into U.S. waters; or revising inspection practices to more aggressively identify noncompliant equipment.37 Ballast Water Since the 1970s, Clean Water Act regulations had exempted ballast water and other discharges incidental to the normal operation of cruise ships and other vessels from NPDES permit requirements. Because of the growing problem of introduction of invasive species into U.S. waters via ballast water (see discussion, page 5), in January 1999, a number of conservation organizations, fishing groups, Native American tribes, and water agencies petitioned EPA to repeal its 1973 regulation exempting ballast water discharge, arguing that 36 37

EPA Discharge Assessment Report, pp. 6-12-6-14. EPA Discharge Assessment Report, pp. 4-16-4-17.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

171

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

ballast water should be regulated as the ―discharge of a pollutant‖ under the Clean Water Act‘s Section 402 permit program. EPA rejected the petition in September 2003, saying that the ―normal operation‖ exclusion is long-standing agency policy, to which Congress has acquiesced twice (in 1979 and 1996) when it considered the issue of aquatic nuisance species in ballast water and did not alter EPA‘s CWA interpretation.38 Further, EPA said that other ongoing federal activities related to control of invasive species in ballast water are likely to be more effective than changing the NPDES rules.39 Until 2004, these efforts to limit ballast water discharges by cruise ships and other vessels were primarily voluntary, except in the Great Lakes. Since then, all vessels equipped with ballast water tanks must have a ballast water management plan.40 After the denial of their administrative petition, the environmental groups filed a lawsuit seeking to force EPA to rescind the regulation that exempts ballast water discharges from CWA permitting. In 2005, a federal district court ruled in favor of the groups, and in 2006, the court remanded the matter to EPA with an order that the challenged regulation be set aside by September 30, 2008. The ruling was upheld on appeal in July 2008.41

EPA’s Response: General Permits for Vessels Significantly, while the focus of the environmental groups‘ challenge was principally to EPA‘s permitting exemption for ballast water discharges, the court‘s ruling—and its mandate to EPA to rescind the exemption in 40 CFR § 122.3(a)—applies fully to other types of vessel discharges that were covered by the long-standing regulatory exemption for ―discharges incidental to the normal operation of vessels,‖ including graywater and bilge water. In response to the court‘s order, in December 2008, EPA issued a Clean Water Act general permit,42 the Vessel General Permit (VGP), applicable to an estimated 69,000 large recreational and commercial vessels, including tankers, freighters, barges, and approximately 175 U.S. and foreign flagged cruise ships that carry and provide overnight accommodations for more than 100 passengers.43 The VGP applies to pollutant discharges incidental to the normal operation from nonrecreational vessels that are 79 feet or more in length, and to ballast water discharges from 38

68 Federal Register 53165, September 9, 2003. In 1990, Congress enacted the Non-indigenous Aquatic Nuisance Prevention and Control Act (16 U.S.C. 4701 et seq) to focus federal efforts on non-indigenous, invasive, aquatic nuisance species, specifically when such species occur in ballast water discharges. That law, as amended by the National Invasive Species Act of 1996, delegated authority to the Coast Guard to establish a phased-in regulatory program for ballast water. 40 For information, see CRS Report RL32344, Ballast Water Management to Combat Invasive Species, by Eugene H. Buck. 41 Northwest Environmental Advocates v. U.S. Environmental Protection Agency, No. 03-74795, EPA No. 035760 (9th Cir. July 23, 2008). In August, the federal district court agreed to EPA‘s request to delay vacatur of the regulatory exemption until December 19, 2008, to ensure that permits could be issued before the exemption was eliminated. 42 A general permit covers multiple facilities within a specific category for a specific period of time (not to exceed five years), after which it expires. Categories covered by general permits have common elements, such as similar types of operations that discharge the same types of wastes. Because of the large number of vessels, EPA believed that it made administrative sense to use general permits, rather than individual permits. 43 U.S. Environmental Protection Agency, ―Final National Pollutant Discharge Elimination System (NPDES) General Permits for Discharges Incidental to the Normal Operation of Vessels, notice of availability,‖ 73 Federal Register 79473-79481, December 29, 2008. For related documents, see http://cfpub.epa.gov/npdes/home.cfm?program_id=350. 39

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

172

Claudia Copeland

commercial vessels of less than 79 feet and commercial fishing vessels of any length. Geographically, it applies to discharges into waters of the United States in all states and territories, extending to the reach of the 3-mile territorial limit. In the permit, EPA identified 26 types of waste streams from the normal operation of covered vessels (some are not applicable to all vessel types). The types of pollutant discharges subject to the permit include aquatic nuisance species, nutrients, pathogens, oil and grease, metals, and pollutants with toxic effects. Most of the categories of waste streams from the normal operations of these vessels would be controlled by best management practices (BMPs) that are described in the permit, many of which are already practiced or are required by existing regulations. To control ballast water discharges, the VGP primarily relies on existing Coast Guard requirements (at 33 CFR Part 151, Subparts C and D), plus certain flushing and ballast exchange practices, especially for vessels in Pacific nearshore areas. To control discharges of bilge water, the draft VGP provides for BMPs, which EPA indicates are consistent with current rules and industry practice. Monitoring, recordkeeping, and reporting requirements apply. The VGP does not include sewage discharges from vessels, which are already regulated under CWA Section 312, as discussed previously in this report. Likewise, discharges of wastes associated with passenger services on cruise ships, such as photo developing and dry cleaning, that are toxic to the environment are not authorized by the permit. Under the VGP, cruise ships are subject to more detailed requirements for certain discharges, such as gray water and pool and spa water, and additional monitoring and reporting. It includes BMPs as well as numeric effluent limits for fecal coliform and residual chlorine in cruise ship discharges of gray water that are based on U.S. Coast Guard rules for discharge of treated sewage or gray water in Alaska (see discussion below, page 19). It also includes operational limits on cruise ship gray water discharges in nutrient-impaired waters, such as Chesapeake Bay or Puget Sound. The 110th Congress considered ballast water discharge issues, specifically legislation to provide a uniform national approach for addressing aquatic nuisance species from ballast water under a program administered by the Coast Guard (S. 1578, ordered reported by the Senate Commerce Committee on September 27, 2007; and H.R. 2830, passed by the House April 28, 2008). Some groups opposed S. 1578 and H.R. 2830, because the legislation would preempt states from enacting ballast water management programs more stringent than Coast Guard requirements, while the CWA does allow states to adopt requirements more stringent than in federal rules. Also, while the CWA permits citizen suits to enforce the law, the legislation included no citizen suit provisions. There was no further action on this legislation.

Air Pollution The Clean Air Act (42 U.S.C. 7401 et seq.) is the principal federal law that addresses air quality concerns. It requires EPA to set health-based standards for ambient air quality, sets standards for the achievement of those standards, and sets national emission standards for large and ubiquitous sources of air pollution, including mobile sources. Cruise ships emissions were not regulated until February 2003. At that time, EPA promulgated emission standards for new marine diesel engines on large vessels (called Category 3 marine engines) such as container ships, tankers, bulk carriers, and cruise ships flagged or registered in the

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

173

United States.44 The 2003 rule resulted from settlement of litigation brought by the environmental group Blue water Network after it had petitioned EPA to issue stringent emission standards for large vessels and cruise ships. Standards in the rule are equivalent to internationally negotiated standards set in Annex VI of the MARPOL protocol for nitrogen oxides, which engine manufacturers currently meet, according to EPA.45 Emissions from these large, primarily ocean-going vessels (including container ships, tankers, bulk carriers, as well as cruise ships) had not previously been subject to EPA regulation. The rule is one of several EPA regulations establishing emissions standards for nonroad engines and vehicles, under Section 213(a) of the Clean Air Act. Smaller marine diesel engines are regulated under rules issued in 1996 and 1999. In the 2003 rule, EPA announced that it would continue to review issues and technology related to emissions from large marine vessel engines in order to promulgate additional, more stringent emission standards for very large marine engines and vessels later. Addressing longterm standards in a future rulemaking, EPA said, could facilitate international efforts through the IMO (since the majority of ships used in international commerce are flagged in other nations), while also permitting the United States to proceed, if international standards are not adopted in a timely manner. Environmental groups criticized EPA for excluding foreignflagged vessels that enter U.S. ports from the marine diesel engine rules and challenged the 2003 rules in federal court. The rules were upheld in June 2004.46 EPA said that it would consider including foreign vessels in the future rulemaking to consider more stringent standards. As noted previously, the 110th Congress enacted legislation to implement MARPOL Annex VI, concerning standards to control air pollution from vessels. Soon after that U.S. action, in October 2008, the IMO adopted amendments to Annex VI that would establish two new tiers of nitrogen oxides emissions control requirements for large marine engines, to take effect in 2011 and 2016. The United States supported the amendments during IMO negotiations. Complementing the IMO revisions, in August 2009, EPA proposed to revise the 2003 CAA rules for Category 3 marine engines and to essentially adopt the amended IMO requirements.47 The EPA proposal would also establish emissions standards for hydrocarbons and carbon monoxide. Like the new Annex VI requirements, the EPA proposal would apply to newly built engines (not existing) and only to U.S.-flagged or registered vessels. On the latter point, EPA said that engines on foreign vessels are subject to the nitrogen oxide limits in MARPOL Annex VI, which the United States can enforce through the Act to Prevent Pollution from Ships (APPS).48

44

U.S. Environmental Protection Agency, ―Final Rule, Control of Emissions from New Marine CompressionIgnition Engines at or Above 30 Liters Per Cylinder,‖ 68 Federal Register 9746-9789, February 28, 2003. 45 Annex VI, which came into force internationally in May 2005, also regulates ozone-depleting emissions, sulfur oxides, and shipboard incineration, but there are no restrictions on particulate matter, hydrocarbons, or carbon monoxide. 46 Blue water Network v. EPA, D.C.Cir., No. 03-1120, June 22, 2004. 47 U.S. Environmental Protection Agency, ―Control of Emissions from new Marine Compression-Ignition Engines at or Above 30 Liters per Cylinder; Proposed Rule,‖ 74 Federal Register 44442-44595, August 28, 2009. 48 Ibid., pp. 44460-44461.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

174

Claudia Copeland

Considerations of Geographic Jurisdiction The various laws and regulations described here apply to different geographic areas, depending on the terminology used. For example, the Clean Water Act treats navigable waters, the contiguous zone, and the ocean as distinct entities. The term ―navigable waters‖ is defined to mean the waters of the United States, including the territorial seas (33 U.S.C. §1362(7)). In turn, the territorial seas are defined in that act as extending a distance of 3 miles seaward from the baseline (33 U.S.C. §1362(8)); the baseline generally means the land or shore. In 1988, President Reagan signed a proclamation (Proc. No. 5928, December 27, 1988, 54 Federal Register 777) providing that the territorial sea of the United States extends to 12 nautical miles from the U.S. baseline. However, that proclamation had no effect on the geographic reach of the Clean Water Act. The contiguous zone is defined in the CWA to mean the entire zone established by the United States under Article 24 of the Convention of the Territorial Sea and the Contiguous Zone (33 U.S.C. §1362(9)). That convention defines ―contiguous zone‖ as extending from the baseline from which the territorial sea is measured to not beyond 12 miles. In 1999, President Clinton signed a proclamation (Proc. No. 7219 of August 2, 1999, 64 Federal Register 48701) giving U.S. authorities the right to enforce customs, immigration, or sanitary laws at sea within 24 nautical miles from the baseline, doubling the traditional 12-mile width of the contiguous zone. As with the 1988 presidential proclamation, this proclamation did not amend any statutory definitions (as a general matter, a presidential proclamation cannot amend a statute). Thus, for purposes of the Clean Water Act, the territorial sea remains 3 miles wide, and the contiguous zone extends from 3 to 12 miles. Under CERCLA, ―navigable waters‖ means waters of the United States, including the territorial seas (42 U.S.C. §9601(15)), and that law incorporates the Clean Water Act‘s definitions of ―territorial seas‖ and ―contiguous zone‖ (42 U.S.C. §9601(30)). The CWA defines the ―ocean‖ as any portion of the high seas beyond the contiguous zone (33 U.S.C. §1362(10)). In contrast, the MPRSA defines ―ocean waters‖ as the open seas lying seaward beyond the baseline from which the territorial sea is measured, as provided for in the Convention of the Territorial Sea and the Contiguous Zone (33 U.S.C. §1402(b)). Limits of jurisdiction are important because they define the areas where specific laws and rules apply. For example, the Clean Water Act MSD standards apply to sewage discharges from vessels into or upon the navigable waters, and Section 402 NPDES permits are required for point source discharges (excluding vessels) into the navigable waters. Section 311 of the CWA, as amended by the Oil Pollution Act, addresses discharges of oil or hazardous substances into or upon the navigable waters of the United States or the waters of the contiguous zone. Provisions of the Act to Prevent Pollution from Ships (APPS, 33 U.S.C. §§1901-1915) concerning discharges of oil and noxious substances apply to navigable waters. Other provisions of that same act concerning garbage and plastics apply to navigable waters or the EEZ, but the term ―navigable waters‖ is not defined in APPS. The MPRSA regulates ocean dumping within the area extending 12 nautical miles seaward from the baseline and regulates transport of material by U.S.-flagged vessels for dumping into ocean waters. Further complicating jurisdictional considerations is the fact that the Clean Water Act refers to these distances from shore in terms of miles, without other qualification, which is generally interpreted to mean an international mile or statute mile. APPS, the MPRSA, and the two presidential proclamations refer to distances in terms of nautical miles from the baseline. These two measures are not identical: a nautical mile is a unit of distance used

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

175

primarily at sea and in aviation; it equals 6,080 feet and is 15% longer than an international or statute mile.49

Alaskan Activities

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

In Alaska, where tourism and commercial fisheries are key contributors to the economy, cruise ship pollution has received significant attention. After the state experienced a threefold increase in the number of cruise ship passengers visits during the 1990s,50 concern by Alaska Natives and other groups over impacts of cruise ship pollution on marine resources began to increase. In one prominent example of environmental violations, in July 1999, Royal Caribbean Cruise Lines entered a federal criminal plea agreement involving total penalties of $6.5 million for violations in Alaska, including knowingly discharging oil and hazardous substances (including dry-cleaning and photo processing chemicals). The company admitted to a fleet-wide practice of discharging oil-contaminated bilge water. The Alaska penalties were part of a larger $18 million total federal plea agreement involving environmental violations in multiple locations, including Florida, New York, and California. Public concern about the Royal Caribbean violations led the state to initiate a program in December 1999 to identify cruise ship waste streams. Voluntary sampling of large cruise ships in 2000 indicated that waste treatment systems on most ships did not function well and discharges greatly exceeded applicable U.S. Coast Guard standards for Type II MSDs. Fecal coliform levels sampled during that period averaged 12.8 million colonies per 100 milliliters in black water and 1.2 million in gray water, far in excess of the Coast Guard standard of 200 fecal coliforms per 100 milliliters.

Federal Legislation Concurrent with growing regional interest in these problems, attention to the Alaska issues led to passage of federal legislation in December 2000 (Certain Alaskan Cruise Ship Operations, Division B, Title XIV of the Miscellaneous Appropriations Bill, H.R. 5666, in the Consolidated Appropriations Act, 2001 (P.L. 106-554); 33 U.S.C. § 1901 Note). This law established standards for vessels with 500 or more overnight passengers and generally prohibited discharge of untreated sewage and gray water in navigable waters of the United States within the state of Alaska. It authorized EPA to promulgate standards for sewage and gray water discharges from cruise ships in these waters. Until such time as EPA issues regulations, cruise ships may discharge treated sewage wastes in Alaska waters only while traveling at least 6 knots and while at least 1 nautical mile from shore, provided that the discharge contains no more than 200 fecal coliforms per 100 ml and no more than 150 mg/l total suspended solids (the same limits prescribed in federal regulations for Type II MSDs). 49 50

For an explanation of these terms, see http://encyclopedia.thefreedictionary.com/Statute%20mile. In 2003, the number of cruise ship passengers in Southeast Alaska was about 800,000, with tens of thousands of crew, in addition. By comparison, the state‘s population is approximately 650,000. Roughly 95% of the current cruise ship traffic is concentrated in Southeast Alaska, a region with a population of approximately 73,000 people. Alaska Department of Environmental Conservation, Commercial Passenger Vessel Environmental Compliance Program, ―Assessment of Cruise Ship and Ferry Wastewater Impacts in Alaska,‖ February 9, 2004, p. 8. Hereafter, ―Assessment of Impacts in Alaska.‖

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

176

Claudia Copeland

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The law also allows for discharges of treated sewage and graywater inside of one mile from shore and at speeds less than 6 knots (thus including stationary discharges while a ship is at anchor) for vessels with systems that can treat sewage and graywater to a much stricter standard. Such vessels must meet these minimum effluent standards: no more than 20 fecal coliforms per 100 ml, no more than 30 mg/l of total suspended solids, and total residual chlorine concentrations not to exceed 10 mg/l. The legislation requires sampling, data collection, and recordkeeping by vessel operators to facilitate Coast Guard oversight and enforcement. The Coast Guard issued regulations to implement the federal law in 2001; the rules became effective immediately upon publication.51 The regulations stipulate minimum sampling and testing procedures and provide for administrative and criminal penalties for violations of the law, as provided in the legislation. Pursuant to Title IV, EPA has carried out a multi-year project to evaluate the performance of various treatment systems and to determine whether revised and/or additional standards for sewage and graywater discharges from large cruise ships operating in Alaska are warranted. In particular, EPA sampled wastewater from four cruise ships that operated in Alaska during the summers of 2004 and 2005 to characterize graywater and sewage generated onboard and to evaluate the performance of various treatment systems.52 Much of the information collected through this effort is summarized in the 2008 Cruise Ship Discharge Assessment Report. Also in 2004, EPA distributed a survey questionnaire on the effectiveness, costs, and impacts of sewage and graywater treatment devices for large cruise vessels in Alaska. EPA has collaborated with thestate of Alaska on a cruise ship plume tracking survey (in 2001) and a study in Skagway Harbor to estimate the near-field dilution of treated sewage and graywater discharges from docked cruise ships (in 2008). These sampling efforts generally show that advanced wastewater treatment systems are effective in treating pathogens, oxygen-demanding materials, suspended solids, oil and grease, and particulate matter, and are moderately effective in treating metals, volatile chemicals, and nutrients.

Alaska State Legislation and Initiatives Building on the federal legislation enacted in 2000, the state of Alaska enacted its own law in 2001 (AS 46.03.460-AS 46.03.490). The state law sets standards and sampling requirements for the underway discharge of blackwater in Alaska that are identical to the blackwater/sewage standards in the federal law. However, because of the high fecal coliform counts detected in graywater in 2000, the state law also extends the effluent standards to discharges of graywater. Sampling requirements for all ships took effect in 2001, as did effluent standards for blackwater discharges by large cruise ships (defined as providing overnight accommodations to 250 or more). Effluent standards for graywater discharges by large vessels took effect in 2003. Small ships (defined as providing overnight accommodations for 50 to 249 passengers) were allowed three years to come into compliance with all effluent standards. The law also established a scientific advisory panel to evaluate the effectiveness of the law‘s implementation and to advise the state on scientific matters related to cruise ship impacts on the Alaskan environment and public health.

51 52

66 Federal Register 38926, July 26, 2001. Results of this sampling are available at http://www.epa.gov/owow/oceans/cruise_ships/results.html.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

177

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

According to the state, the federal and state standards have prompted large ships to either install advanced wastewater treatment systems that meet the effluent standards or to manage wastes by holding all of their wastewater for discharge outside of Alaskan waters (beyond 3 miles from shore).53 As of 2006, 23 of 28 large cruise ships that operated in Alaskan waters had installed advanced wastewater treatment systems, and the quality of wastewater discharged from large ships has improved dramatically, according to the state. Small ships, however, have not installed new wastewater treatment systems, and the effluentquality has remained relatively constant, with discharge levels for several pollutants regularly exceeding state water quality standards. In particular, test results indicated that concentrations of free chlorine, fecal coliform, copper, and zinc from stationary smaller vessels pose some risk to aquatic life and also to human health in areas where aquatic life is harvested for raw consumption. In addition to the state‘s 2001 action, in August 2006 Alaska voters approved a citizen initiative requiring cruise lines to pay the state a $50 head tax for each passenger and a corporate income tax, increasing fines for wastewater violations, and mandating new environmental regulations for cruise ships (such as a state permit for all discharges of treated wastewater). Revenues from the taxes will go to local communities affected by tourism and into public services and facilities used by cruise ships. Supporters of the initiative contend that the cruise industry does not pay enough in taxes to compensate for its environmental harm to the state and for the services it uses. Opponents argued that the initiative would hurt Alaska‘s competitiveness for tourism, and have filed a legal challenge to the tax in federal court. At least two cruise ship lines (Norwegian Cruise and Royal Caribbean) have reportedly stopped operating cruise ships in Alaskan waters because of the citizen initiative. In 2009, Alaska enacted legislation (HB 134) giving the Department of Environmental Conservation more time to implement the stringent wastewater treatment standards and creating a scientific review board to assess whether the standards can be achieved.

Other State Activities Activity to regulate or prohibit cruise ship discharges also has occurred in several other states. In April 2004, the state of Maine enacted legislation governing discharges of graywater or mixed blackwater/graywater into coastal waters of the state (Maine LD. 1158). The legislation applies to large cruise ships (with overnight accommodations for 250 or more passengers) and allows such vessels into state waters after January 1, 2006, only if the ships have advanced wastewater treatment systems, comply with discharge and recordkeeping requirements under the federal Alaska cruise ship law, and get a permit from the state Department of Environmental Protection. Under the law, prior to 2006, graywater dischargers were allowed if the ship operated a treatment system conforming to requirements for continuous discharge systems under the Alaska federal and state laws. In addition, the legislation required the state to apply to EPA for designation of up to 50 No Discharge Zones,

53

―Assessment of Impacts in Alaska,‖ pp. 33-57.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

178

Claudia Copeland

in order that Maine may gain federal authorization to prohibit blackwater discharges into state waters. EPA approved the state‘s NDZ request for Casco Bay in June 2006. California enacted three bills in 2004. One bars cruise ships from discharging treated wastewater while in the state‘s waters (Calif. A.B. 2672). Another prohibits vessels from releasing graywater (Calif. A.B. 2093), and the third measure prevents cruise ships from operating waste incinerators (Calif. A.B. 471). Additionally, in 2003 California enacted a law that bans passenger ships from discharging sewage sludge and oil bilge water (Calif. A.B. 121), as well as a bill that prohibits vessels from discharging hazardous wastes from photoprocessing and dry cleaning operations into state waters (Calif. A.B. 906). Another measure was enacted in 2006: California S.B. 497 requires the state to adopt ballast water performance standards by January 2008 and set specific deadlines for the removal of different types of species from ballast water, mandating that ship operators remove invasive species (including bacteria) by the year 2020. Several states, including Florida, Washington, and Hawaii, have entered into memoranda of agreement with the industry (through the Cruise Lines International Association and related organizations) providing that cruise ships will adhere to certain practices concerning waste minimization, waste reuse and recycling, and waste management. For example, under a 2001 agreement between industry and the state of Florida, cruise lines must eliminate wastewater discharges in state waters within 4 nautical miles off the coast of Florida, report hazardous waste off-loaded in the United States by each vessel on an annual basis, and submit to environmental inspections by the U.S. Coast Guard. Similarly, in April 2004 the Washington Department of Ecology, Northwest Cruise Ship Association, and Port of Seattle signed a memorandum of understanding (MOU) that would allow cruise ships to discharge wastewater treated with advanced wastewater treatment systems into state waters and would prohibit the discharge of untreated wastewater and sludge. The MOU has been amended several times and now covers other ports, as well. Environmental advocates are generally critical of such voluntary agreements, because they lack enforcement and penalty provisions. States respond that while the Clean Water Act limits a state‘s ability to control cruise ship discharges, federal law does not bar states from entering into voluntary agreements that have more rigorous requirements.54 In June 2009, the Department of Ecology reported that cruise ships visiting the state during the 2008 sailing season mostly complied with the MOU to stop discharging untreated wastewater, and found that wastewater treatment systems generally produce high quality effluent that is as good or better than on-land plants. Although enforcement of what is essentially a voluntary agreement is difficult, the state argues that having something in place to protect water quality is beneficial and enables the state to obtain data on vessels and waste treatment equipment.55

54

Washington State Department of Ecology, Water Quality Program, ―2008 Annual Cruise Ship MOU Meeting, January 22, 2009, Powerpoint Presentation,‖ p. 14. 55 Washington State Department of Ecology, ―2008 Assessment of Cruise Ship Environmental Effects in Washington,‖ June 2009, Pubn. No. 09-10-047.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

179

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Industry Initiatives Pressure from environmental advocates, coupled with the industry‘s strong desire to promote a positive image, have led the cruise ship industry to respond with several initiatives. Members of the Cruise Lines International Association (CLIA), which represents 25 of the world‘s largest cruise lines, have adopted a set of waste management practices and procedures for their worldwide operations building on regulations of the IMO and U.S. EPA. The guidelines generally require graywater and blackwater to be discharged only while a ship is underway and at least 4 miles from shore and require that hazardous wastes be recycled or disposed of in accordance with applicable laws and regulations.56 CLIA‘s cruise line companies also have implemented Safety Management System (SMS) plans for developing enhanced wastewater systems and increased auditing oversight. These SMS plans are certified in accordance with the IMO‘s International Safety Management Code. The industry also is working with equipment manufacturers and regulators to develop and test technologies in areas such as lower emission turbine engines and ballast water management for elimination of non-native species. Environmental groups commend industry for voluntarily adopting improved management practices but also believe that enforceable standards are preferable to voluntary standards, no matter how well intentioned.57 The industry joined with the environmental group Conservation International (CI) to form the Ocean Conservation and Tourism Alliance to work on a number of issues. In December 2003 they announced conservation efforts in four areas to protect biodiversity in coastal areas: improving technology for wastewater management aboard cruise ships, working with local governments to protect the natural and cultural assets of cruise destinations, raising passenger and crew awareness and support of critical conservation issues, and educating vendors to lessen the environmental impacts of products from cruise ship suppliers. Because two-thirds of the top cruise destinations in the world are located in the Caribbean and Mediterranean, two important biodiversity regions, in 2006, CLIA and CI announced a joint initiative to develop a map integrating sensitive marine areas into cruise line navigational charts, with the goal of protecting critical marine and coastal ecosystems. In 2004, Royal Caribbean Cruises Ltd.(RCCL) announced plans to retrofit all vessels in its 29-ship fleet with advanced wastewater treatment technology, becoming the first cruise line to commit to doing so completely. The company had been the focus of efforts by the environmental group Oceana to pledge to adopt measures that will protect the ocean environment and that could serve as a model for others in the cruise ship industry, in part because of the company‘s efforts to alter its practices following federal enforcement actions in the 1990s for environmental violations that resulted in RCCL paying criminal fines that totaled $27 million.

56 57

See http://www.cruising.org/industry/environment.cfm. ―Cruise Control,‖ p. 25.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

180

Claudia Copeland

ISSUES FOR CONGRESS Concerns about cruise ship pollution raise issues for Congress in three broad areas: adequacy of laws and regulations, research needs, and oversight and enforcement of existing programs and requirements. Attention to these issues is relatively recent, and more assessment is needed of existing conditions and whether current steps (public and private) are adequate. Bringing the issues to national priority sufficient to obtain resources that will address the problems is a challenge.

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Laws and Regulations A key issue is whether the several existing U.S. laws, international protocols and standards, state activities, and industry initiatives described in this chapteradequately address management of cruise ship pollution, or whether legislative changes are needed to fill in gaps, remedy exclusions, or strengthen current requirements. As EPA noted in its 2000 white paper, certain cruise ship waste streams such as oil and solid waste are regulated under a comprehensive set of laws and regulations, but others, such as graywater, are excluded or treated in ways that appear to leave gaps in coverage.58 Graywater is one particular area of interest, since investigations, such as sampling by state of Alaska officials, have found substantial contamination of cruise ship graywater from fecal coliform, bacteria, heavy metals, and dissolved plastics. State officials weresurprised that graywater from ships‘ galley and sink waste streams tested higher for fecal coliform than did the ships‘ sewage lines.59 One view advocating strengthened requirements came from the U.S. Commission on Ocean Policy. In its 2004 final report, the Commission advocated clear, uniform requirements for controlling the discharge of wastewater from large passenger vessels, as well as consistent interpretation and enforcement of those requirements. It recommended that Congress establish a new statutory regime that should include    

uniform discharge standards and waste management procedures; management process; required sampling, testing, and monitoring by vessel operators using uniform protocols; and and incentives to encourage industry investment in innovative treatment technologies.60

A proposal reflecting some of these concepts, the Clean Cruise Ship Act, has been introduced in the 111th Congress as S. 1820 (Durbin) and H.R. 3888 (Farr). The legislation would amend the Clean Water Act to prohibit cruise vessels entering a U.S. port from discharging sewage, graywater, or bilge water into waters of the United States, including the 58

EPA White Paper, p. 16. ―Assessment of Impacts in Alaska,‖ p. 12. 60 U.S. Commission on Ocean Policy, ―An Ocean Blueprint for the 21st Century,‖ September 2004, p. 243. 59

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

181

Great Lakes, except in compliance with prescribed effluent limits and management standards. It further would direct EPA and the Coast Guard to promulgate effluent limits for sewage, graywater, and bilge water discharges from cruise vessels that are no less stringent than the more restrictive standards under the existing federal Alaska cruise ship law described above. It would require cruise ships to treat wastewater wherever they operate and would authorize broadened federal enforcement authority, including inspection, sampling, and testing. The legislation also would impose passenger fees for use by EPA and the Coast Guard to implement the legislation. Environmental advocates supported similar versions of this legislation in previous Congresses. Industry groups have argued that it targets an industry that represents only a small percentage of the world‘s ships and that environmental standards of the industry, including voluntary practices, already meet or exceed current international and U.S. regulations.61 As noted above, a few states have passed legislation to regulate cruise ship discharges. If this state-level activity were to increase, Congress could see a need to develop federal legislation that would harmonize differences in the states‘ approaches. Another issue for Congress is the status of EPA‘s efforts to manage or regulate cruise ship wastes. As discussed previously, in 2000 Congress authorized EPA to issue standards for sewage and graywater discharges from large cruise ships operating in Alaska. In response, the agency has been collecting information and assessing the need for additional standards, beyond those provided in P.L. 106-554, but has not yet proposed any rules. In December 2008, EPA released a Cruise Ship Discharge Assessment Report that builds on a 2007 draft assessment report and the 2000 White Paper. The final report examines five cruise ship waste streams (sewage, graywater, oily bilge water, solid waste, and hazardous waste) and discusses how the waste streams are managed and current actions by the federal government to address the waste streams. For each waste stream, the report identifies possible options and alternatives to address cruise ship discharges, but it also states that EPA has not determined that any of the options are necessary, feasible, or warranted, or that EPA or any other entity has the legal authority to implement the options.62 Other related issues of interest could include harmonizing the differences presented in U.S. laws for key jurisdictional terms as they apply to cruise ships and other types of vessels; providing a single definition of ―cruise ship,‖ which is defined variously in federal and state laws and rules, with respect to gross tonnage of ships, number of passengers carried, presence of overnight passenger accommodations, or primary purpose of the vessel; or requiring updating of existing regulations to reflect improved technology (such as the MSD rules that were issued in 1976).

61

Unlike the current legislation, proposals introduced in previous Congresses were freestanding bills that would not have amended any current law. 62 EPA Discharge Assessment Report, p. 1-8.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

182

Claudia Copeland

Research Several areas of research might help improve understanding of the quantities of waste generated by cruise ships, impacts of discharges and emissions, and the potential for new control technologies. The U.S. Commission on Ocean Policy noted in its 2004 final report that research can help identify the degree of harm represented by vessel pollution and can assist in prioritizing limited resources to address the most significant threats. The commission identified several directions for research by the Coast Guard, EPA, NOAA, and other appropriate entities on the fates and impacts of vessel pollution:63    

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.



Processes that govern the transport of pollutants in the marine environment. Small passenger vessel practices, including the impacts of stationary discharges. resulting from advanced sewage treatment on large passenger vessels. Cumulative impacts of commercial and recreational vessel pollution on particularly sensitive ecosystems, such as coastal areas with low tidal exchange and coral reef systems. Impacts of vessel air emissions, particularly in ports and inland waterways where the surrounding area is already having difficulty meeting air quality standards.

In the 2008 Cruise Ship Assessment Report, EPA identified several possible research options, including establishing a detailed nationwide sampling, testing, and monitoring program to gather data; increasing studies on human health an environmental effects of cruise ship discharges; directing research to geographic areas that may be impacted by cruise ship discharges; or directing future assessments to potential cumulative impacts from multiple cruise ships, from stationary cruise ships, and in semi-enclosed environments such as bays and harbors.64

Oversight and Enforcement The 2000 GAO report documented—and EPA‘s 2000 cruise ship white paper acknowledged—that existing laws and regulations may not be adequately enforced or implemented. GAO said there is need for monitoring of the discharges from cruise ships in order to evaluate the effectiveness of current standards and management. GAO also said that increased federal oversight of cruise ships by the Coast Guard and other agencies is needed concerning maintenance and operation of pollution prevention equipment, falsifying of oil record books (which are required for compliance with MARPOL), and analysis of records to verify proper offloading of garbage and oily sludge to onshore disposal facilities.65

63

U.S. Commission on Ocean Policy, ―An Ocean Blueprint for the 21st Century,‖ September 2004, p. 249. EPA Discharge Assessment Report, pp. 1-8-1-9. 65 2000 GAO Report, p. 34. 64

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Cruise Ship Pollution: Background, Laws and Regulations, and Key Issues

183

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

The Coast Guard has primary enforcement responsibility for many of the federal programs concerning cruise ship pollution. A key oversight and enforcement issue is the adequacy of the Coast Guard‘s resources to support its multiple homeland and non-homeland security missions. The resource question as it relates to vessel inspections was raised even before the September 11 terrorist attacks, in the GAO‘s 2000 report. The same question has been raised since then, in light of the Coast Guard‘s expanded responsibilities for homeland security and resulting shift in operations, again by the GAO and others.66 EPA has identified several possible options for enforcement and compliance, including improving monitoring and inspections; rewarding passengers who aid in detecting illegal activities; allowing state personnel (as well as the Coast Guard) to inspect cruise ship pollution control equipment; or charging a passenger fee to put a marine engineer onboard cruise ships to observe ship waste treatment practices.67 In its 2000 report, GAO also found that the process for referring cruise ship violations to other countries does not appear to be working, either within the Coast Guard or internationally, and GAO recommended that the Coast Guard work with the IMO to encourage member countries to respond when pollution cases are referred to them and that the Coast Guard make greater efforts to periodically follow up on alleged pollution cases occurring outside U.S. jurisdiction.

66

U.S. General Accounting Office, Coast Guard: Relationship between Resources Used and Results Achieved Needs to be Clearer, GAO-04-432, March 2004. Also see archived CRS Report RS21125, Homeland Security: Coast Guard Operations—Background and Issues for Congress, by Ronald O‘Rourke. 67 EPA Discharge Assessment Report, p. 1-9.

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved. Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

INDEX

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

A Abraham, 40 absorption, 28 academics, 41, 51 access, 8, 9, 11, 13, 14, 19, 28, 29, 30, 31, 32, 33, 34, 39, 40, 42, 44, 45, 46, 48, 49, 101, 109, 120, 121, 124, 127, 128 accessibility, 33 accounting, 109, 129 accuracy, 120 achievement, 172 acid, 161 acquisitions, 33 advertising, 43 advocacy, 124, 125, 127, 158 affirming, 67, 73 Africa, 5, 16 age, 9, 41, 45, 128, 131 agencies, 7, 8, 12, 13, 16, 62, 63, 69, 78, 79, 89, 91, 139, 140, 141, 148, 164, 170, 182 agriculture, 161 air carriers, 116 air emissions, 182 Air Force, 2 air pollutants, 158 air quality, 161, 162, 172, 182 Alaska, xi, 28, 40, 65, 152, 156, 159, 167, 172, 175, 176, 177, 180, 181 Alaska Natives, 175 Albania, 5, 29 alcohol, 65, 67, 72 alternatives, 19, 150, 167, 181 alters, 142 aluminum, 159 ambient air, 172 ambiguity, 43 anthropology, 42

anti-retroviral medications, 127 antitrust, ix, 97, 98, 99, 100, 103, 104, 105, 106, 107, 114, 115, 116, 117 APL, 101, 109, 110, 112 applications, 29, 30, 33, 51 appointment process, 69 appointments, 69 appropriations, 146, 147, 148 aquatic habitats, 13 architects, 4 arrest, 135 ash, 159, 162, 168 Asia, ix, 3, 5, 16, 20, 22, 25, 98, 99, 102, 107, 108, 111, 112, 113, 114 Asian countries, 107 assault, 50, 119, 122, 124, 127, 128, 129 assessment, 2, 14, 37, 51, 107, 158, 180, 181 assets, 151, 152, 179 attacks, 15 auditing, 63, 91, 179 Australasia, 22 Australia, vii, 1, 3, 5, 6, 7, 8, 9, 16, 19, 20, 21, 22, 23 authorities, x, 7, 35, 120, 122, 135, 141, 145, 147, 174 authority, 7, 8, 18, 47, 64, 80, 100, 103, 125, 129, 141, 142, 148, 167, 171, 181 authors, 41 Automobile, 110 availability, 121, 141, 142, 167, 171 avoidance, 29 awareness, 14, 131, 179

B background, viii, 53, 131, 158 bacteria, 36, 159, 161, 165, 178, 180 Bangladesh, 57 bankruptcy, 115 Barbados, 5, 29

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

186

Index

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

base rate, 105 batteries, 160 beams, 35 beauty, 169 behavior, 37, 115 behaviors, viii, 27, 45 beliefs, 11, 37 bias, 61, 70, 71, 84, 89 binding, 105, 150, 163 biodiversity, 179 biological processes, 34, 36 birds, 159 birth, 157 black market, 41 blog, 43, 45 blogger, 43 blood, 84 Boat, 31, 35 bonds, 42 Bosnia, 5, 29 Bosnia-Herzegovina, 5 Brazil, 11 breaches, 56 breakdown, 160 brothers, 31 Bulgaria, 4, 5, 29 bureaucracy, 6 burn, 161, 162 business model, 109 buyer, 39, 41

C cadmium, 150 Cambodia, 5, 16, 23, 29, 56 campaigns, viii, 27 Canada, v, x, 18, 28, 133, 134, 135, 136, 139, 140, 143 candidates, 69 capitalism, 34 carbon, 161, 173 carbon dioxide, 161 carbon monoxide, 161, 173 carcinogen, 161 Caribbean, 5, 16, 55, 175, 177, 179 carrier, 100, 102, 104, 105, 106, 108, 109, 112, 113, 116, 117 cartel, 99 case law, 15 categorization, 169 cation, 130 certificate, 73, 74, 75, 81, 82, 88 certification, 69, 121, 125, 127, 130, 131 challenges, 19, 29, 36, 37, 38, 39, 41, 48, 50, 51, 120

channels, 138, 149 character, vii, 4, 36, 40 checks and balances, 19 childhood, 52 Chile, 54 China, 21, 49, 101, 107, 109, 110, 112, 114 chlorinated hydrocarbons, 160 chlorination, 166 chlorine, 172, 176, 177 Christians, 46 citizenship, 37 City, 40, 46, 47, 49, 51, 150 Civil War, 14, 15, 38 classes, 13, 42, 113 classification, 53 Clayton Act, 98 clean air, 115 Clean Air Act, 172 cleaning, 45, 159, 160, 169, 172, 175, 178 climate, 34, 162 climate change, 162 coal, 49, 109 coastal communities, 159 coercion, 70 cohesiveness, 104 collective resource, 33, 37 College Station, 31 collisions, 54 collusion, 115 commerce, vii, ix, x, 7, 12, 17, 37, 64, 82, 98, 99, 101, 103, 115, 117, 151, 156, 173 communication, 126 community, 9, 12, 19, 30, 50, 53 comparative advantage, 117 compensation, 53, 54, 56, 63, 69, 138 competence, viii, 4, 27, 45 competition, 99, 102, 104, 106, 107, 108, 115, 117 competition policy, 108 competitiveness, 177 competitors, 110 compilation, 120, 123, 125, 129 complaints, viii, ix, 59, 60, 61, 70, 73, 74, 75, 90, 124, 128 complement, 10 compliance, 75, 123, 126, 157, 163, 164, 165, 169, 176, 181, 182, 183 components, 19, 31, 32, 42, 43, 44, 145 computer-aided design (CAD), 31 concrete, 54 conditioning, 44 conference, 57, 66, 82, 93, 100, 101, 102, 103, 104, 105, 107, 108, 114 conflict, 8, 39, 53, 84, 108, 149

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

187

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Index conflict of interest, 8, 84, 108 conformity, 142 congestion, 100, 115 congressional hearings, 61 consensus, 116 consent, 11, 12, 83, 140, 141 conservation, viii, 4, 8, 27, 29, 30, 32, 36, 43, 44, 45, 82, 170, 179 Consolidated Appropriations Act, 175 consolidation, 116 Constitution, 9, 15 construction, 31, 49, 123, 126 consumer goods, 109, 113 consumers, 8, 39, 123 consumption, viii, 27, 45, 177 contaminant, 167 contamination, 159, 180 control, vii, 1, 4, 9, 12, 53, 55, 56, 57, 63, 64, 88, 100, 101, 103, 138, 141, 146, 158, 163, 171, 172, 173, 178, 182, 183 convention, 3, 10, 55, 150, 163, 174 conviction, 87 coordination, 164 copper, 177 coral reefs, 167 correlation, 117 corrosion, 36 corruption, 37 cost, ix, 10, 11, 29, 30, 31, 35, 83, 98, 101, 102, 112, 113, 114, 115, 116, 117, 121, 122, 161 cost saving, 115 costs, 56, 100, 113, 114, 116, 117, 121, 122, 142, 176 Council of Europe, 3 Council of Ministers, 16 counsel, 61, 70, 71 counseling, 128 Court of Appeals, 68, 72 covering, 169 credentials, viii, 39, 59, 61, 63, 64, 67, 70, 71, 72, 73, 75, 77, 78, 79, 91, 92, 93 credibility, 32, 83 credit, 10, 44 crime, 32, 47, 120, 122, 123, 124, 125, 127, 129, 130, 141 criminal activity, 129 criminal acts, 122 criticism, 47 critics, x, 63, 155, 158 Croatia, 5, 29 crude oil, viii, 53, 54 Cuba, 5, 29, 49

cultural heritage, vii, viii, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 19, 27, 29, 33, 37, 40, 42, 47, 50, 51 cultural values, 34 culture, viii, 5, 27, 29, 30, 32, 35, 37, 41, 42, 43, 45, 46, 47, 48, 51 curiosity, 39 currency, 100 curricula, 81, 121, 125, 130 curriculum, 125, 131 customers, 104, 105, 107, 116 Cyprus, 56

D damages, iv, 12, 150 danger, 14, 169 data collection, viii, 27, 32, 45, 158, 176 database, 2, 62, 90, 111 dating, 6, 30, 31, 35, 47 death, 28, 44, 129, 135, 138 deaths, 124 decisions, viii, ix, 40, 59, 60, 61, 63, 68, 70, 71, 72, 73, 74, 75, 76, 84, 89, 90, 98, 104, 112, 116, 123 defense, 66, 81, 165 deficiencies, 56, 165 deficit, ix, 44, 98 definition, viii, 11, 13, 27, 33, 37, 42, 43, 112, 164, 167, 168, 181 degradation, 9, 36, 161 demonstrations, 149, 150 denial, 28, 65, 68, 71, 83, 85, 139, 141, 171 Denmark, 30, 32, 110 Department of Agriculture, 62, 79, 88, 91, 99 Department of Commerce, 164 Department of Energy, 96 Department of Homeland Security, 61, 78, 94, 95, 164, 166 Department of Justice, 104, 164 Department of the Interior, 14, 96 deposition, 32, 48, 81, 161 depression, 33 deregulation, 104 destruction, 31, 32, 42, 46, 47, 48, 135, 139, 143, 159 detection, 35, 125, 131 detention, 135 detergents, 159, 160 developing nations, 34 diesel engines, 161, 172 directors, 51 disability, 63, 82 disaster, 53 disbursement, 9

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

188

Index

discharges, x, xi, 54, 146, 149, 155, 156, 157, 158, 161, 162, 164, 165, 166, 167, 168, 169, 170, 171, 172, 174, 175, 176, 177, 178, 181, 182 discipline, viii, 27, 42, 44, 45, 50, 70, 73, 87, 138 disclosure, 141 discourse, 42 diseases, 159 disinfection, 166 disposition, 60, 61, 62, 74, 75, 76, 83, 90, 91, 149 diversity, 30, 33 division, 81 domestic laws, x, xi, 134, 138, 139, 140, 155, 156, 158, 162, 163 doors, 120, 123, 126 draft, 4, 60, 78, 172, 181 drinking water, 167 drought, 31 drug abuse, 64 drug trade, 134 drug use, 72, 77 dumping, x, 145, 146, 147, 148, 149, 150, 165, 168, 174 duration, 29 duties, viii, x, 56, 59, 65, 103, 127, 128, 151 dynamics, 34

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

E earnings, 102 economic development, 34, 41 economic welfare, 101 economics, 99 economies of scale, 115 economy, 175 ecosystem, 150 Ecuador, 5, 11, 29 educational programs, 38 effluent, 165, 167, 168, 172, 176, 177, 178, 181 effluents, 170 Egypt, 34, 35, 49 emission, 172, 173, 179 employees, 70, 83 employment, 60, 61, 63, 79, 88, 91 endorsements, 64 energy, 4, 45, 118 enforcement, x, xi, 2, 8, 11, 14, 15, 38, 54, 56, 57, 89, 121, 124, 127, 131, 134, 135, 136, 137, 138, 139, 140, 141, 145, 149, 156, 157, 164, 165, 176, 178, 179, 180, 181, 183 engagement, 53 England, 34, 35, 38, 40, 42, 46, 49, 101 entrepreneurs, 41, 51

environment, x, 2, 9, 10, 33, 36, 53, 54, 108, 115, 123, 125, 131, 148, 155, 156, 157, 169, 172, 176, 179 environmental conditions, 30 environmental degradation, 46, 150 environmental effects, 159, 182 environmental factors, 29, 31, 36 environmental harm, 149, 177 environmental impact, viii, x, 53, 54, 155, 156, 179 environmental influences, 36 environmental protection, 53, 54, 57, 166 Environmental Protection Agency, 63, 145, 147, 148, 157, 158, 161, 171, 173 environmental quality, 150 environmental regulations, 63, 177 environmental standards, 181 EPA, 145, 148, 149, 150, 157, 158, 159, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 175, 176, 177, 179, 180, 181, 182, 183 equality, 40 equipment, 44, 55, 100, 112, 118, 122, 123, 124, 127, 160, 165, 167, 170, 178, 179, 182, 183 erosion, 5, 36 ethical standards, 51 Europe, ix, 3, 5, 98, 99, 102, 106, 111, 112, 114, 116 European Commission, 99, 106 European Community, 3, 30 European Union, ix, 97, 99 examinations, 69, 165 exchange rate, 116 exclusion, 171 execution, 142 exercise, 15, 73, 85, 138 expertise, 16, 17, 30 experts, 41, 142 exploitation, viii, 27, 28, 29, 33, 41 exploration, 11, 17, 18, 19, 38, 39, 43 exporter, 110, 117 exports, 99, 110, 113, 117, 118 exposure, 34, 46, 48 extraction, 4, 45, 50

F facilitators, 107 failure, 80, 125, 161, 167, 170 fairness, 42, 63 faith, 84, 149 family, 52, 127 fear, 102 Federal Aviation Administration, 88 Federal Communications Commission, 185 federal courts, 104

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

189

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Index federal law, 14, 18, 77, 88, 164, 167, 168, 172, 176, 178 Federal Trade Commission Act, 98 feelings, 9 feet, 49, 109, 157, 165, 171, 175 fiber, 33 fiber optics, 33 finance, 115 financial institutions, 37 Finland, 30, 49 firearms, 134, 139 firms, 63, 88, 116 fish, 4, 149, 159, 160 fisheries, 159, 161, 165, 175 fishing, 4, 35, 170, 172 fixed costs, 116 flexibility, 73, 104, 105, 180 flight, 64, 135, 137 floating, x, 155, 157, 165 flood, 47 fluctuations, 36, 100 FMC, v, ix, 97, 99, 100, 101, 103, 104, 106, 107 focusing, viii, 45, 53 food, 101, 159, 164 France, 17, 18, 24, 25, 110 fraud, 88 free trade, 114 freshwater, 4 fuel, 39, 54, 100, 114, 161 funding, 7 fundraising, 45 funds, 82, 121, 148, 150

G Gabon, 5 garbage, x, 155, 157, 160, 162, 163, 164, 168, 174, 182 gasoline, 160 gender, 128 General Accounting Office, 157, 183 generation, 33, 159, 168, 169 geography, 114 Georgia, 38 Germany, 24, 30, 110 global trade, 102 Globalization, 114 goals, 48, 51, 118 gold, 12, 31, 38 government intervention, 101, 106, 117 grants, 80, 82 gravity, 149 Great Britain, 11, 30 Great Lakes, x, 152, 155, 167, 171, 181

Greece, 11, 46 greed, 11, 28, 40 Grenada, 5, 29 groups, 16, 18, 37, 105, 115, 116, 158, 170, 171, 172, 173, 175, 179, 181 growth, 7, 8, 112, 114, 117, 152, 156, 159 growth rate, 156 guidelines, xi, 3, 4, 15, 16, 18, 107, 124, 125, 127, 130, 131, 156, 163, 179 guilty, 57

H habitat, 167 Haiti, 5 hands, 46 handwriting, 52 harbors, 182 harm, 40, 51, 117, 135, 138, 149, 156, 160, 182 harmful effects, 149 harmony, 117 Hawaii, 120, 152, 178 hazardous materials, 170 hazardous substances, 169, 170, 174, 175 hazardous wastes, x, 155, 157, 158, 160, 169, 170, 178, 179 hazards, 29, 36 haze, 161 headquarters, 70, 109 health, 148, 149, 150, 156, 157, 158, 160, 172, 177, 182 heavy metals, 150, 160, 165, 180 hiring, 44, 60, 69 homeland security, 165, 183 homicide, 129 Hong Kong, 107, 108, 109, 110 hopes, 41, 43 host, 36, 38, 43, 51, 134, 135, 137, 138, 139, 140 House, 21, 24, 42, 78, 79, 106, 161, 172 human activity, 5, 38 human immunodeficiency virus, 127 Hunter, v, 1, 10, 15, 21, 44 hunting, viii, 2, 19, 27, 38, 40, 42, 43, 45, 50 Hurricane Katrina, 95 hydrocarbons, 159, 160, 161, 173

I ideal, 40 ideals, 45 identification, 31, 38, 64, 123, 126 identity, 12, 38, 45, 46 ideology, 39 image, x, 57, 155, 156, 179

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

190

Index

images, 24, 31, 35, 57, 126 imagination, 2 imbalances, ix, 97, 99, 116 immigration, 137, 174 immunity, ix, 2, 11, 14, 15, 17, 98, 99, 100, 104, 105, 106, 107, 114, 115, 116, 117 impacts, x, 155, 156, 159, 162, 175, 176, 182 implementation, viii, 16, 20, 27, 32, 45, 54, 56, 124, 135, 142, 146, 162, 176 imports, 99, 110, 114, 118 incentives, 56, 69, 180 inclusion, 13, 78, 148 income, 39, 102, 118, 177 income tax, 177 independence, viii, 59, 60, 61, 62, 68, 69, 70, 90 Independence, v, 59, 68, 69, 70 India, 5, 57, 107, 112, 114 Indians, 35 indigenous, 6, 171 Indonesia, 16, 114 industrial wastes, 146, 148, 150 industrialization, 101 industriousness, 37 industry, viii, x, xi, 27, 41, 45, 50, 51, 54, 101, 116, 125, 155, 156, 157, 158, 160, 161, 162, 168, 169, 172, 177, 178, 179, 180, 181 inflation, 122 information exchange, 140 information sharing, 5 infrastructure, 3, 10 inhibitor, 113 insects, 35 inspections, 165, 170, 178, 183 inspectors, 8, 165 instability, 116 institutions, 17 instructors, 64, 131 instruments, 29, 37 insulation, 69 insurance, 57 integrity, 35, 36, 69, 70 intelligence, 45 intentions, 34 interaction, 8, 10 interactions, 10, 32 interest groups, 13, 14, 38 interference, 7 international law, vii, 11, 12, 14, 15, 126, 138 international standards, 64, 158, 164, 173 international trade, 9 internet, 129 Internet, 91, 124, 127, 129, 130 intervention, 36, 46, 51

interview, 35 investment, 41, 51, 64, 81, 88, 112, 116, 180 investors, 43, 51 Iran, 5, 29 iron, 49, 109 Israel, 31, 47, 48, 110 issues, xi, 4, 5, 13, 17, 29, 32, 33, 41, 44, 54, 64, 66, 67, 68, 71, 73, 74, 80, 83, 99, 115, 117, 139, 141, 149, 156, 157, 158, 163, 172, 173, 175, 179, 180, 181 Italy, 5, 20, 32, 49

J Japan, 35, 107, 108, 109, 110 job performance, 69 jobs, x, 118, 155, 156 Jordan, 5 judges, viii, 59, 60, 61, 62, 68, 90 Judiciary Committee, 106 jurisdiction, ix, x, 2, 12, 13, 14, 15, 56, 80, 88, 97, 99, 107, 119, 125, 129, 138, 142, 145, 146, 148, 150, 156, 162, 163, 164, 166, 168, 170, 174, 183

K keiretsu, 108 kidnapping, 129 knots, 114, 175, 176

L labeling, 163 labor, 63, 114, 115, 152 labor force, 152 lakes, 4, 6, 7, 12, 164 land, vii, 2, 5, 6, 7, 10, 13, 120, 135, 146, 157, 163, 165, 166, 170, 174, 178 landfills, 147 languages, 143 Latin America, 5, 16, 54 law enforcement, 56, 122, 124, 125, 127, 128, 129, 130, 131, 134, 135, 136, 137, 138, 139, 140, 141, 142 laws, ix, x, xi, 2, 12, 13, 14, 16, 36, 59, 62, 90, 98, 103, 104, 106, 116, 120, 128, 137, 139, 140, 147, 148, 149, 151, 152, 156, 157, 163, 164, 168, 174, 179, 180, 181, 182 leaks, 160 learning, 37 Lebanon, 5, 29 legal protection, 14 legislation, vii, xi, 1, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19, 51, 56, 57, 99, 107, 122, 156, 158, 163, 172, 173, 175, 176, 177, 180, 181

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

191

Index Liberia, 56, 156, 162 licenses, 88 likelihood, 32, 33, 38 limitation, 54, 149 line, 44, 105, 112, 113, 117, 120, 124, 127, 128, 130, 179 linguistics, 42 litigation, 12, 15, 107, 173 loans, 101 local government, 129, 179 Louisiana, 65 loyalty, 102 lubricants, 170 lupus, 40 lying, vii, 1, 174

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

M machinery, 110, 114, 160, 170 magnetic resonance, 33 magnetic resonance imaging, 33 Maine, xi, 49, 156, 177 maintenance, 29, 123, 149, 152, 160, 169, 182 majority, 12, 13, 36, 39, 60, 67, 75, 77, 93, 156, 162, 173 management, xi, 2, 4, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 33, 69, 149, 156, 160, 163, 168, 169, 171, 172, 179, 180, 181, 182 mandates, 121, 122 manufactured goods, 114 marine environment, 14, 56, 61, 64, 148, 149, 158, 162, 165, 168, 182 maritime jurisdiction, 125, 129 market, ix, 37, 39, 41, 42, 98, 101, 102, 104, 105, 108, 111, 112, 114, 115, 116, 157 market share, 42, 108, 115 marketing, 9 marketplace, 37, 117 markets, 115, 117 marriage, 84 material resources, 142 materialism, 28 matrix, 34 measures, 10, 15, 16, 29, 36, 55, 56, 69, 142, 163, 174, 179 meat, 114 media, viii, 27, 33, 40, 43, 44, 45, 47, 51 medical care, 127 Medicare, 96 Mediterranean, 33, 54, 55, 110, 179 membership, 4 men, 43 merchandise, ix, 38, 97, 111, 114, 117 mercury, 150, 160

metals, 2, 38, 159, 166, 172, 176 methodology, 4, 63 Mexico, 5, 29, 49, 114 military, x, 2, 15, 17, 49, 101, 151, 152 milligrams, 165 missions, 183 model, 10, 89, 179 models, 16, 30 mollusks, 36, 161 money, 40, 45, 64, 108, 129, 134 morning, 46, 48 mortality, 160 motif, 52 motion, 17, 40, 66, 68, 71, 80, 83, 84, 86 motives, 39 movement, 10 multimedia, 30 music, 46 mussels, 161

N nation, 2, 3, 12, 13, 14, 15, 16, 17, 18, 109, 118, 120, 125, 129, 152, 163, 164 National Defense Authorization Act, 15, 24 national emergency, 101 national interests, 139 National Park Service, 7, 13 National Research Council, 160 national security, ix, 98, 117, 152 nationalism, 9 nationality, 118, 129 native species, 161, 179 natural resources, 13, 32, 33, 36, 40, 170 negotiating, 54, 116 Netherlands, 5, 21, 30 New South Wales, 5, 6, 16, 23 New Zealand, 49 next generation, 50 Nigeria, 5, 29 nitrification, 161 nitrogen, 159, 161, 163, 166, 173 nitrogen oxides, 161, 162, 173 North America, 5, 12, 16, 38, 49, 111, 112, 114, 160 Northern Ireland, 11 nuisance, 161, 171, 172 nutrients, 158, 159, 166, 172, 176

O objectives, 62, 63, 90, 91, 117, 150, 162 objectivity, 84 obligation, 4

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

192

Index

oceans, vii, viii, 3, 53, 54, 56, 148, 150, 152, 156, 176 OECD, 106 oil, 4, 53, 54, 55, 56, 57, 65, 114, 150, 157, 158, 159, 160, 163, 165, 166, 170, 172, 174, 175, 176, 178, 180, 182 Oil Pollution Act of 1990, 170 oil spill, 65 omission, 130, 131 operator, 124, 128, 130, 169 opportunities, 8, 41, 51, 151 oppression, 37 order, 38, 56, 57, 60, 62, 65, 66, 67, 68, 72, 73, 74, 75, 77, 78, 80, 81, 82, 83, 84, 86, 87, 88, 89, 101, 115, 116, 138, 141, 143, 149, 163, 171, 173, 178, 182 outreach, 91, 125 overlap, x, 149, 155 oversight, xi, 11, 108, 138, 156, 176, 179, 180, 182, 183 ownership, 5, 7, 11, 12, 54 oxides, 173 oxygen, 159, 160, 166, 176 ozone, 163, 173

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

P Pacific, 3, 5, 16, 20, 22, 25, 109, 113, 114, 117, 172 paints, 160 Pakistan, 57 Panama, 5, 29, 56, 113, 157, 162 Paraguay, 5, 29 parallel, 6 parameters, 32, 116 parents, 51 Parliament, 46 passive, 9 pastures, 40 pathogens, 158, 159, 166, 172, 176 penalties, 67, 121, 125, 149, 167, 170, 175, 176 performance, 56, 63, 69, 91, 105, 165, 166, 176, 178 permission, iv, 10, 11, 46 permit, 7, 8, 64, 125, 137, 145, 148, 149, 164, 165, 167, 168, 169, 170, 171, 172, 177 persuasion, 57 Peru, 20, 24 petroleum, 150, 159, 160 pharmaceuticals, 160 Philippines, 16 phosphorous, 159, 166 photographs, 65 planning, 8 plants, 161, 178 plastics, x, 110, 150, 155, 159, 162, 163, 174, 180

platform, 16 pleasure, 41 point of origin, 114 police, 105, 135, 136 policy instruments, 117 policy makers, 41 pollutants, 156, 159, 160, 161, 165, 172, 177, 182 polluters, 57 pollution, viii, x, xi, 46, 53, 55, 56, 146, 150, 155, 156, 157, 158, 161, 162, 163, 164, 170, 172, 173, 175, 180, 182, 183 pools, 100 poor, 41, 138, 164, 165 population, 34, 37, 62, 90, 175 population growth, 34 ports, 54, 56, 57, 100, 107, 108, 113, 115, 120, 121, 122, 131, 137, 152, 159, 160, 162, 165, 173, 178, 182 Portugal, 5, 29 power, 104, 114, 161 prayer, 47 precedent, 11, 64, 68, 71, 77, 85, 143 preference, 67, 69 preferential treatment, 101 prejudice, 82, 83, 84 president, 40 President Clinton, 174 prevention, xi, 53, 55, 125, 131, 156, 163, 182 prices, 100, 105, 116, 118 prior knowledge, 128 privacy, 123 private ownership, 42 private party, 142 private sector, 13 privatization, 39, 40, 42, 43, 51 probability, 62, 74, 90 probe, 35 producers, 39, 108, 110 production, 83, 113, 114, 141 productivity, 33 profit, viii, 2, 11, 27, 39, 41, 42 profitability, 113, 116 profits, 11, 40, 41 program, vii, viii, ix, 8, 10, 14, 16, 30, 38, 59, 60, 61, 62, 64, 68, 69, 70, 71, 73, 74, 79, 90, 91, 127, 137, 145, 147, 150, 164, 165, 168, 171, 172, 175, 182 project, 4, 10, 18, 30, 35, 38, 39, 45, 176 prosperity, 39, 41 protocol, 173 protocols, x, 146, 155, 156, 180 public awareness, 5 public education, 8, 45, 51

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

193

Index public health, x, 155, 159, 161, 169, 176 public interest, 13, 82, 83, 86, 88 public policy, 41, 68, 71, 139 public sector, 39 public service, 177

Q

S

qualifications, 4, 69, 81

R

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

revenue, 33, 50, 113, 114, 117 risk, 30, 43, 51, 72, 124, 126, 177 risk-taking, 51 rolling, 7, 13 Romania, 5, 29 rubber, 110 runoff, 146

radioactive waste, 148, 150 range, viii, 6, 31, 53, 73, 92, 114, 148, 160, 165, 168, 169 rape, 119 reading, 50 reality, 33, 40 reason, 41, 51, 84, 116, 139, 141 reasoning, 52 recall, 33 reception, 36, 160, 168 recognition, 5, 15, 42, 103, 131 recommendations, iv, 8, 125, 131, 158 recovery, 10, 13, 17, 18, 19, 38, 44 recreation, 156 recycling, 159, 169, 178 region, ix, 16, 98, 111, 150, 161, 175 regulation, 2, 9, 41, 42, 64, 67, 103, 106, 130, 158, 162, 170, 171, 173 regulations, vii, viii, ix, x, xi, 1, 2, 8, 14, 18, 27, 29, 56, 59, 60, 61, 62, 63, 64, 68, 69, 70, 71, 72, 74, 77, 80, 87, 88, 89, 90, 91, 107, 121, 125, 130, 137, 139, 155, 156, 162, 163, 164, 165, 166, 167, 168, 169, 170, 172, 173, 174, 175, 176, 179, 180, 181, 182 regulators, 179 rehabilitation, 64, 77 rehabilitation program, 64, 77 rejection, 28 relationship, 11, 32 relevance, 52 relief, 80, 83, 104 remote sensing, 14, 33 repair, 152 Requirements, 95, 120, 123, 126, 128 reserves, x, 151 residues, 170 resources, 9, 10, 13, 14, 28, 30, 33, 34, 36, 37, 38, 39, 41, 42, 43, 44, 49, 50, 52, 100, 150, 156, 166, 175, 180, 182, 183 respect, x, 11, 44, 86, 107, 114, 137, 155, 156, 181 retirement, 49 returns, 51

safety, vii, viii, ix, 36, 53, 56, 59, 60, 61, 64, 65, 67, 70, 72, 73, 81, 87, 88, 119, 120, 121, 122, 123, 125, 126, 128, 137, 162, 163, 165 sales, 41 sampling, 165, 167, 175, 176, 180, 181, 182 sanctions, 71, 78, 88, 168 sanctuaries, 145 satellite, 57 satellite technology, 57 scheduling, 89 school, 51 screening, 166 sea level, 35, 36 search, 2, 39, 43, 165 searches, 12, 91 searching, 2 Second World, 3, 49 Secretary of the Treasury, 49 securities, 64, 88 security, vii, viii, ix, 31, 34, 50, 59, 61, 64, 70, 72, 88, 101, 115, 117, 119, 120, 122, 123, 124, 125, 126, 131, 165 sediment, 3, 149 sediments, 149 seizure, 149 self-interest, 42 Senate, 78, 79, 89, 121, 122, 123, 126, 163, 172 sensitivity, 123 separation, 48 sewage, x, xi, 146, 147, 148, 150, 155, 156, 157, 158, 159, 163, 164, 165, 166, 167, 172, 174, 175, 176, 178, 180, 181, 182 sexual harassment, 124 sexually transmitted diseases, 124, 127 shaping, 117 shareholders, 43 shares, 140 sharing, 100, 107, 139, 140 sheep, 40 shellfish, 159, 167 Sherman Act, 98 shipbuilding, 98, 152 shoreline, 13, 31 short run, 116

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

194

Index

shortage, 99, 102, 114 silver, 12, 38, 44, 49, 52 Singapore, 57, 101, 107, 108, 109, 110, 114 skills, 17, 69 Slovakia, 5, 29 sludge, 146, 147, 148, 150, 160, 166, 178, 182 Smuggling, 133 Social Security, 63, 96 software, 33 solid waste, x, 150, 155, 157, 158, 159, 160, 168, 180, 181 solvents, 160 South Korea, 109, 110 Southeast Asia, 114 sovereign state, 162 sovereignty, 2, 5, 15, 17, 56 space, ix, 40, 57, 97, 98, 100, 101, 102, 112, 114, 115, 170 Spain, vii, 1, 3, 5, 9, 10, 11, 17, 20, 23, 24, 25, 29 specialists, 42 specialization, 118 species, 161, 170, 171, 172, 178 speculation, viii, 27, 29, 107, 114 speed, 114 Sri Lanka, 16, 57 stability, 103, 116, 160 stabilization, 29, 105 stakeholders, 125 standards, vii, x, 1, 2, 4, 16, 18, 19, 50, 53, 55, 56, 63, 64, 69, 88, 91, 112, 114, 121, 123, 130, 131, 146, 148, 149, 150, 155, 158, 161, 162, 163, 165, 166, 167, 169, 170, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182 Standing Rules, 121, 122, 123, 126 State Department, 164, 178 state laws, 177, 181 statistics, viii, 53, 119 statute, 13, 74, 75, 80, 145, 174 steel, 10, 46, 109, 159 stock, 38 stock exchange, 38 storage, 33, 139, 143, 168 strain, 160 strategies, 48 strategy, viii, 27, 28, 29, 33 students, 38, 131 submarines, 5 subpoena, 141 subscribers, viii, 27 subsidy, 101 subsistence, 9 substitution, 37, 39 substitutions, 52

sulfur, 161, 163, 173 sulfur dioxide, 161 supervision, 47, 70, 71, 89 suppliers, 117, 179 supply, ix, 41, 98, 101, 102, 114, 115, 151 support services, 127 suppression, 141 Supreme Council, 35 Supreme Court, 104 surging, ix, 97, 99 surplus, 44 surveillance, 123, 124, 126, 148, 149 survey, 10, 176 survival, 36, 37 suspensions, 67 sustainability, 33, 50 Sweden, 30 Switzerland, 110 sympathy, 40

T tags, 51 Taiwan, 109, 110 tanks, 171 targets, 181 tariff, 114 tax base, 102 tax system, 102 technology transfer, 5 teeth, 43 telephone, 81, 83, 120, 124, 127, 129 television, 38, 43 tenure, 63, 68, 69 terminals, 54, 115 territory, 134, 138, 140, 142 terrorism, 134, 140 terrorist attacks, 165, 183 testing, 31, 167, 176, 180, 181, 182 Thailand, 16 The Homeland Security Act, 166 theft, 28, 120, 124, 128, 129 thinking, 41, 48 threat, 31, 34, 37, 56, 64, 159 threats, 34, 36, 37, 38, 41, 42, 160, 182 threshold, 122 thresholds, 169 tides, 54 time frame, 62, 90 tourism, 9, 48, 50, 161, 175, 177 toxic effect, 172 toxic substances, 158, 169 toxicity, 160 toys, 118

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

195

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

Index tracking, 62, 90, 176 trade, viii, ix, 2, 27, 29, 41, 49, 97, 98, 99, 100, 101, 102, 103, 106, 108, 109, 110, 111, 112, 114, 115, 116, 117, 120, 152, 157 trade deficit, ix, 97, 111 trade liberalization, 114 trading, 108, 109 trading partner, 109 trading partners, 109 tradition, 108 traffic, 64, 88, 109, 175 training, 5, 8, 16, 39, 60, 121, 124, 125, 127, 130, 131, 136, 137, 150 transcription, 142 transcripts, 106 transformations, 36 transitions, 33 translation, 142 transmission, 127 transparency, 100 transport, viii, 49, 53, 54, 55, 98, 104, 105, 108, 109, 113, 114, 116, 118, 148, 156, 161, 168, 174, 182 transport costs, 114 transportation, vii, x, 82, 104, 107, 109, 117, 149, 151, 152, 157 transportation infrastructure, 152 Transportation Security Administration, 61 trauma, 124, 127 treaties, 53, 54, 55, 56, 57, 120, 141, 146 trends, viii, 53, 112, 150 trial, 57, 61 tribes, 170 trickle down, 39, 51 trucking, 116 trust, 34, 43, 51, 107 Turkey, 50 Turks, 46

U U.S. economy, x, 99, 118, 155, 156 U.S. history, 65 U.S. policy, 99 U.S. Secretary of Commerce, 14 Ukraine, 5, 29 UNESCO, vii, viii, 1, 2, 3, 4, 5, 9, 10, 11, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 38, 40, 41, 48, 50, 51, 57 uniform, 63, 146, 149, 167, 172, 180 United Kingdom, 11, 18, 53 United Nations, vii, 1, 2, 3, 20, 24, 27, 28, 53, 162 universe, 92 universities, 51 updating, 181

USDA, 62, 63, 71, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89 use of force, 137, 139

V Valencia, 10 vandalism, 31, 46 vapor, 160 variable costs, 100, 111 Vatican, 46 vehicles, 173 Venezuela, 11 vessels, vii, ix, x, 2, 4, 5, 11, 13, 14, 15, 17, 39, 64, 100, 102, 108, 111, 112, 114, 115, 119, 120, 121, 122, 123, 125, 131, 148, 149, 151, 152, 153, 156, 157, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182 victims, 122, 123, 127 video, 35, 120, 123, 124, 126, 127 viruses, 159, 161 visualization, 30 vocabulary, 44 volatility, ix, 98, 99, 116 voters, 177 voting, 5

W waiver, 65, 149 war, x, 34, 42, 46, 49, 101, 151 war years, 49 warrants, 73, 86 waste, x, xi, 145, 146, 147, 148, 155, 156, 157, 158, 159, 160, 162, 165, 168, 169, 170, 172, 175, 178, 179, 180, 181, 182, 183 waste disposal, 148 waste incinerator, 178 waste management, x, xi, 145, 146, 156, 158, 168, 178, 179, 180 waste treatment, 175, 178, 183 wastewater, x, 155, 157, 158, 159, 161, 167, 176, 177, 178, 179, 180, 181 water quality, 145, 147, 150, 177, 178 water quality standards, 177 waterways, 12, 13, 36, 134, 135, 139, 152, 165, 182 weakness, 114 wealth, 33, 41, 44 weapons of mass destruction, 140 websites, 8 weight ratio, 109 welfare, 148, 157, 169 wilderness, 28, 34, 40

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest

196

World War I, 5, 7, 101 writing, 29, 124, 128, 143

Z zinc, 177

Copyright © 2009. Nova Science Publishers, Incorporated. All rights reserved.

wildlife, 160 wind, 34 winning, 28 winter, 31 witnesses, 43, 61, 81, 82, 83, 89, 142 wood, 35 workers, 46, 152

Index

Maritime Law: Issues, Challenges and Implications : Issues, Challenges and Implications, Nova Science Publishers, Incorporated, 2009. ProQuest