All aspects of the maritime industry, from global ocean-going shipping to domestic inland brown water transportation and offshore energy, have been and will continue to be profoundly affected by the COVID-19 crisis, perhaps even more than other industries given that mobility and inter/trans-national movement of people and goods are their very lifeblood.
Unsurprisingly, the regulatory response from myriad federal agencies and global maritime NGO’s has been, and will continue to be, dynamic and evolving. The following summarizes the more notable first-week regulatory/industry responses relevant to maritime concerns, although this is by no means an exhaustive list:
– The United States Coast Guard (USCG) issued MSIB Number: 07-20 on March 18, 2020, providing guidance for ports and terminals with respect to COVID-19. The MSIB reminds owners and operators of “facilities” that the provisions of 33 CFR promulgated under the Marine Transportation Safety Act (MTSA) may apply to issues arising out of the COVID-10 pandemic. “Facilities” under the MTSA and 33 CFR include “any structure or facility of any kind located in, on, under, or adjacent to any waters subject to the jurisdiction of the U.S. and used, operated, or maintained by a public or private entity, including any contiguous or adjoining property under common ownership or operation.” 33 C.F.R. §101.105. Likewise, the MTSA regulations apply to certain “fixed or floating facility, including MODUs” operating on the Outer Continental Shelf (OCS). 33 C.F.R. §106.105.
The MSIB recognizes that “the COVID-19 pandemic has resulted in a myriad of unique operating conditions that warrant special considerations, [such as, for example] cruise ships mooring at facilities not approved for passenger operations, garbage removal, and facility and vessel crew interactions.” As the pandemic response continues, additional instances of these kinds of non-routine “facility” operations may arise, such as potential use of industrial port/terminal “facilities” for emergency “hospital ships” (as is already happening in New York and California) or possibly mooring of unmanned vessels that have been evacuated due to corona virus/COVID-19 crew exposures, as well as dockside cleaning/disinfection of vessels from which sick crews/passengers have been disembarked.
Notwithstanding this potentially unique and unprecedented operational situations, the MSIB reminds “facility” owners/operators that Declarations of Security (DoS) must still be completed (depending on the “Maritime Security” (MARSEC) level) for any vessels embarking/disembarking or manned cargo vessels transferring any cargo. 33 C.F.R. §105.245. Likewise, Declarations of Inspection (DoI) will still be required before any transfer of oil or hazardous material to or from a vessel. Nonetheless, the MSIB authorizes completion of DoS/DoI and any related documentation via non-face-to-face communication and electronic signatures in light of corona virus exposure concerns.
Further, the MSIB notes that while “facilities” are not allowed to impede embarkation/ disembarkation of seafarers except as ordered by the USCG, Customs and Border Patrol, and/or the Centers for Disease Control [CDC], nothing prevents “facilities” from “from maximizing options to minimize direct interaction that may include use of camera systems, barriers, or other measures.” This guidance is relevant to the Seafarers’ Access regulations (33 C.F.R. §105.237), which requires “facilities” to provide no-cost shore access (as specified in the regulation) for all seafarers and representatives of seafarers’ welfare and labor organizations. These requirements are derived from the International Convention for Safety of Life at Sea (SOLAS) Chapter XI–2, the International Ship and Port Facility (ISPS) Code, the International Maritime Organization’s ‘‘Reminder in Connection with Shore Leave and Access to Ships’’ MSC/1/Circ.1342, and the 2016 Amendments to the Convention on the Facilitation of International Maritime Traffic (FAL) Annex 1, which acknowledges that “there is an internationally recognized obligation to protect the interest of seafarer’s shore leave, including shoreside access.” 84 Fed. Reg. 12102, 12104 (Apr. 1, 2019). “As stated in Annex 1 of the FAL, ‘‘Crew members shall be allowed ashore by the public authorities while the ship on which they arrive is in port, provided that the formalities on arrival of the ship have been fulfilled and the public authorities have no reason to refuse permission to come ashore for public health, public safety or public order.” And “[i]f private actors thwart or hinder the ability of the United States to fulfill its international obligations, such as by imposing fees on crewmembers as a condition to shoreside access in the United States, any and all legal and diplomatic responses, to include notification to the vessel’s flag-state, may be taken by the U.S. Government.” Id.
Additionally, the MSIB reminds “facility” owners/operators that under 33 CFR 105, all U.S. ports and terminals are required to accept vessel wastes. Under “[i]nternational regulations require these reception facilities to have a [USCG] Certificate of Adequacy (COA) … that attests to their ability to offload garbage, which may include medical waste (33 CFR 158.410)[, which] is defined in 33 CFR 158.120 as ‘isolation wastes, infectious waste, human blood and blood products, pathological wastes, sharps, body parts, contaminated bedding, surgical wastes and potentially contaminated laboratory wastes, dialysis wastes and such additional medical items as prescribed by the EPA by regulation.’” If a port/terminal does not have a USCG COA, it must “provide vessels with adequate reception facilities for medical waste or a list of persons authorized by federal, state or local law or regulation to transport and treat such wastes.” 33 C.F.R. 158.410(a)(2). Likewise, as the MSIB points out, the USCG COTP may grant waivers to allow for disposal of “medical wastes” at non-COA “facilities.” 33 C.F.R. §158.150. Disposal of “medical wastes” may present precarious circumstances in the event of a vessel calling at a port/terminal with a COVID-19 infected crew, given that presumably any number of items (bedding, infirmary wastes, clothing, etc.) might constitute “medical waste” that could pose health threats to the receiving “facility.” Accordingly, the MSIB directs “facilities” to “work with the appropriate federal, state, and/or local agencies to determine the actual risks and formulate a plan of action based on information received from those agencies” in any such circumstances.
Finally, the MSIB reiterates that if a “facility” will be faced with non-compliance due to the dynamic circumstances around the pandemic, owners/operators should “contact the [USCG] Captain of the Port (COTP) to request and receive permission to temporarily deviate from the requirements.” Any such “request should include any new measures or safeguards the facility plans to employ to mitigate any risk from the non-compliance with 33 CFR 105”; and given these unprecedented circumstances, should likewise include factors “not discussed in 33 CFR 105, [including] any safety risks that may be created from the non-compliance . . . [such as whether] the dock is physically capable of handling that vessel, and any logistical issues that may arise such as movement of personnel from the vessel off the facility, any medical issues or personnel that may be introduced to the facility, supplies for the vessel, and waste removal from the vessel.”
This guidance is particularly critical given that ports and terminals may be included among “essential businesses” allowed to continue operations during the COVID-19 pandemic. For example, in Louisiana, Governor Edwards’ March 22, 2020 Proclamation adopts the Cybersecurity & Infrastructure Security Agency (CISA) guidelines for “essential services,” which in turn include “[p]etroleum product storage, pipeline, marine transport [and] terminals” as well as “[o]nshore and offshore operations for maintenance and emergency response” and “[m]aritime transportation workers – port workers, mariners, equipment operators.”
– Likewise, the USCG has issued MSIB Number: 06-20, echoed by a similar “Maritime Security Communication with Industry” (MSCI) promulgated by the Maritime Administration (MARAD), providing guidance for vessel operators regarding incident reporting requirements relative to the COVID-19 pandemic. Illnesses aboard vessels must be reported to both the USCG as “hazardous conditions” (33 C.F.R. §160.216) and to the CDC. This applies to both international (42 C.F.R. §71.21) and interstate (42 C.F.R. § 70.4) voyages, and thus encompasses virtually the entirety of the U.S. maritime infrastructure. Simply put, “[i]t is critical to report persons who exhibit symptoms consistent with COVID-19 or other illness to the COTP” and to the CDC, and failing to do so may result in “civil penalties, vessel detentions, and criminal liability.”
In this regard, the International Maritime Organization (IMO), in conjunction with the World Health Organization, has issued guidance with respect to managing COVID-19 outbreaks on vessels. Likewise, the IMO (Circular Letter No. 4203/Add. 4, Mar. 5 2020) has emphasized the humanitarian concerns implicated by the pandemic, and advises that notwithstanding any domestic port state restrictions imposed as a result of the pandemic, “it is very important for port States to accept all ships (both cargo and passenger), for docking and to disembark suspected cases on board, as it is difficult to treat suspect cases on board and it could endanger others.”
Applicable regulations (42 C.F.R. §70.1) define “illness” as including any of multiple COVID-19 symptoms, including “[f]ever (has a measured temperature of 100.4 °F [38 °C] or greater; or feels warm to the touch; or gives a history of feeling feverish) accompanied by one or more of the following:…difficulty breathing or suspected or confirmed pneumonia, persistent cough or cough with bloody sputum…[f]ever that has persisted for more than 48 hours; …[a]cute gastroenteritis, which means either: diarrhea, defined as three or more episodes of loose stools in a 24-hour period or what is above normal for the individual.”
The MSIB likewise reminds foreign vessel interests (or any vessels arriving from foreign ports) that “the master of a ship destined for a U.S. port shall report immediately to the quarantine station at or nearest the port at which the ship will arrive, the occurrence, on board, of any death or any ill person among passengers or crew (including those who have disembarked or have been removed) during the 15-day period preceding the date of expected arrival or during the period since departure from a U.S. port (whichever period of time is shorter).” 42 C.F.R. §71.21.
It should additionally be noted, although not addressed in the MSIB, that for interstate domestic vessel operations (i.e. the brownwater/inland maritime industry) the CDC is authorized to “take such measures to prevent … spread of … diseases as … deem[ed] reasonably necessary.” 42 C.F.R. §70.2. This includes the ability to apprehend and detain individuals with “quarantinable communicable diseases, as specified by Executive Order” who may be “moving or about to move from a State into another State .” 42 C.F.R. §70.6. President Trump’s March 18, 2020 “Executive Order on Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of Covid-19” would appear to trigger these provisions. And moreover, prior Executive Order No. 13295 (April 4, 2003) entitled “Revised List of Quarantinable Communicable Diseases” specifically includes “Severe Acute Respiratory Syndrome (SARS) [another corona virus-linked disease], which is a disease associated with fever and signs and symptoms of pneumonia or other respiratory illness, is transmitted from person to person predominantly by the aerosolized or droplet route, and, if spread in the population, would have severe public health consequences.” Thus, it is possible that as the quickly-evolving COVID-19 response expands, additional restrictions/ guidance on the inland fleet and interstate vessel operations may be forthcoming.
– Finally, the USCG Sector New Orleans has issued MSIB Vol XX Issue 035 – COVID19 Vessel Precautions, which provides even more detailed guidance to vessels/operators on the Mississippi River regarding operations in the midst of the COVID-19 pandemic. This MSIB gives detailed recommendations for interfacing between river pilots and vessel crews, including inter alia “wip[ing] down the entire bridge with a 5% solution of bleach water (Chart table, instruments, chairs, helm, entire console, windows, etc.)” within the hour prior to pilot boarding; washing of hands and face by all crew prior to entering the bridge, and their hands again immediately on entry; provision of sanitizing materials by the ship (although pilots are encourage to bring their own as well); and wiping down of all surfaces contacted by the pilots. Additionally, pilots are encouraged to step out of the bridge (as safety allows) if they need to cough/sneeze, and if they cannot, to wipe down any surfaces in their immediate vicinity. The detailed guidance in this MSIB are recommendations only, not requirements, but should be heeded both as a matter of compliance and in the interest of stemming the spread of COVID-19.