Is Obesity or Irresponsibility Contributing to Vessel Instability?...
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Reprinted from the DECEMBER 2009 Edition of MARINE NEWS Passenger vessels make up a very diverse subset of our maritime industry. Passenger vessel operators run the gamut from crew boat operators, ferry operators, tour boat operators, charter vessels, water taxis, etc. Due to the di- verse nature of this subset of the maritime industry and the importance of passenger safety, passenger-vessels are regu- lated by local, state and federal authorities. As everyone is aware, these regulations are often complicated and often not reasonably tailored to meet the needs of your particu- lar operation or type of vessel. Many operators deal with non-maritime passengers who are not familiar with vessels or operating on the water and consequently the risks are high and any incident can be cat- astrophic. As such, a high profile incident usually forces regulatory agencies to push for additional regulatory re- quirements. For example, on October 2, 2005, the Ethan Allen, a glass enclosed pontoon boat, capsized on Lake George in up- state N.Y. Investigators attributed the accident to vessel overloading, a passenger seating arrangement that moved the center of gravity away from the hull of the vessel, and a sharp turn by the captain. The tragedy left 20 passengers dead and prompted an inquiry by government regulators into vessel stability requirements. Accordingly, on August 20, 2008, the Coast Guard released proposed regulations that would alter the assumed average weight for passengers and changed the stability requirements for all Coast Guard inspected passenger vessels. The additional rules proposed by the Coast Guard can be found in the Federal Register dated August 20, 2008 on pages 49,244 to 49,275. The proposed rules cover two areas that are pertinent to vessel stability including: (1) vessel stability requirements, testing and certification and (2) a recalculation of the max- imum number of passengers that can be safely permitted on board based upon the assumed average weight of your pas- sengers. These proposed regulations are important to the entire industry because they change the regulatory require- ments applicable to passenger vessels, will drive up the cost of complying with these regulations and cut down on prof- itability by reducing the number of passengers that can be safely transported. Once effective, the proposed changes in passenger weight and vessel stability testing will affect own- ers and operators of passenger vessels of all sizes. Vessel stability is a design factor that limits the number of people that a passenger vessel is allowed to carry. Vessel sta- bility refers to the tendency of a vessel to remain upright or return upright when affected by forces that are caused by the action of waves, wind, passenger movement, etc. The Coast Guard’s stability requirements include intact stabil- ity for all vessels, as well as subdivision and damage stabil- ity for any vessel carrying more than 49 passengers or vessels over 65 feet in length. As things stand now, all passenger vessels subject to fed- eral regulation must procure a Certificate of Inspection is- sued by the Coast Guard. A Certificate of Inspection is issued after a vessel’s stability has been tested either through detailed design calculations or, for vessels under 65 feet in length, through a stability proof test. Both methods take into account the weight of the passengers on board. The per-passenger weight estimate that must be used dur- ing stability testing was established in the 1960s and is set at 160 pounds per passenger. Unfortunately, Americans have, on average, gotten a bit bigger since the 1960s. To reflect the current reality of average adult weight, the pro- posed rule will increase the assumed average to 185 pounds per passenger. Furthermore, the rule provides for a mech- anism that will continually update the average adult weight based upon data from the National Health and Nutrition Examination Survey published by the Center for Disease Control (CDC). Thus, once you make a decision as to how Is Obesity or Irresponsibility Contributing to Vessel Instability? Coast Guard Stability Regulation Reform Lawrence R. DeMarcay, III is a partner at Fowler Rodriguez Valdes-Fauli in the firm’s New Orleans, La. office. He can be reached at ldemarcay@ frvf- law.com or 504-595-5122.
Transcript of Is Obesity or Irresponsibility Contributing to Vessel Instability?...
Reprinted from the DECEMBER 2009 Edition of MARINE NEWS
Passenger vessels make up a very diverse subset of ourmaritime industry. Passenger vessel operators run thegamut from crew boat operators, ferry operators, tour boatoperators, charter vessels, water taxis, etc. Due to the di-verse nature of this subset of the maritime industry and theimportance of passenger safety, passenger-vessels are regu-lated by local, state and federal authorities. As everyone isaware, these regulations are often complicated and oftennot reasonably tailored to meet the needs of your particu-lar operation or type of vessel.
Many operators deal with non-maritime passengers whoare not familiar with vessels or operating on the water andconsequently the risks are high and any incident can be cat-astrophic. As such, a high profile incident usually forcesregulatory agencies to push for additional regulatory re-quirements.
For example, on October 2, 2005, the Ethan Allen, a glassenclosed pontoon boat, capsized on Lake George in up-state N.Y. Investigators attributed the accident to vesseloverloading, a passenger seating arrangement that movedthe center of gravity away from the hull of the vessel, anda sharp turn by the captain. The tragedy left 20 passengersdead and prompted an inquiry by government regulatorsinto vessel stability requirements. Accordingly, on August20, 2008, the Coast Guard released proposed regulationsthat would alter the assumed average weight for passengersand changed the stability requirements for all Coast Guardinspected passenger vessels. The additional rules proposedby the Coast Guard can be found in the Federal Registerdated August 20, 2008 on pages 49,244 to 49,275.
The proposed rules cover two areas that are pertinent tovessel stability including: (1) vessel stability requirements,testing and certification and (2) a recalculation of the max-imum number of passengers that can be safely permitted onboard based upon the assumed average weight of your pas-
sengers. These proposed regulations are important to theentire industry because they change the regulatory require-ments applicable to passenger vessels, will drive up the costof complying with these regulations and cut down on prof-itability by reducing the number of passengers that can besafely transported. Once effective, the proposed changes inpassenger weight and vessel stability testing will affect own-ers and operators of passenger vessels of all sizes.
Vessel stability is a design factor that limits the number ofpeople that a passenger vessel is allowed to carry. Vessel sta-bility refers to the tendency of a vessel to remain upright orreturn upright when affected by forces that are caused bythe action of waves, wind, passenger movement, etc. TheCoast Guard’s stability requirements include intact stabil-ity for all vessels, as well as subdivision and damage stabil-ity for any vessel carrying more than 49 passengers orvessels over 65 feet in length.
As things stand now, all passenger vessels subject to fed-eral regulation must procure a Certificate of Inspection is-sued by the Coast Guard. A Certificate of Inspection isissued after a vessel’s stability has been tested either throughdetailed design calculations or, for vessels under 65 feet inlength, through a stability proof test. Both methods takeinto account the weight of the passengers on board.
The per-passenger weight estimate that must be used dur-ing stability testing was established in the 1960s and is setat 160 pounds per passenger. Unfortunately, Americanshave, on average, gotten a bit bigger since the 1960s. Toreflect the current reality of average adult weight, the pro-posed rule will increase the assumed average to 185 poundsper passenger. Furthermore, the rule provides for a mech-anism that will continually update the average adult weightbased upon data from the National Health and NutritionExamination Survey published by the Center for DiseaseControl (CDC). Thus, once you make a decision as to how
Is Obesity or Irresponsibility Contributing to Vessel Instability?
Coast Guard Stability Regulation Reform
Lawrence R. DeMarcay, III is a partnerat Fowler Rodriguez Valdes-Fauli in thefirm’s New Orleans, La. office. He canbe reached at ldemarcay@ frvf-law.com or 504-595-5122.
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By Larry DeMarcay
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to run your passenger vessel operation, the CDC could re-vise its data and your operating model could become ob-solete. Furthermore, a vessel may only be allowed to operateunder a lower assumed weight per passenger if it candemonstrate that another value more accurately representsthe average weight of persons carried in service; for exam-ple, when the vessel carries primarily children.
The proposed regulations also seek to add two additionalsteps that the owner would have to comply with on an an-nual basis to remain in compliance with Coast Guard reg-ulations. First, at each annual inspection the owner wouldhave to demonstrate that he or she not only has a valid Cer-tificate of Inspection posted, but also prove that the previ-ously provided stability information is still appropriate forthe vessel’s intended loading and service. Second, the ownerwould also need to confirm that the total weight of the ves-sel’s equipment and variable loads is still valid for the in-tended service.
The timeframe for retesting a vessel’s stability would beevery 10 years or any time that a modification is made thatcould adversely affect a vessel’s stability. In all cases, vesselstability tests would take into account the most recent as-sumed average weight per person according to CDC in-formation.
What do these changes mean for the average passengervessel operator? The most obvious impact will be a reduc-tion in the number of passengers that vessels will be able tocarry. Such a reduction will have a direct impact on theprofits of businesses that carry passengers for a fee and anindirect impact on all other passenger vessels whose oper-ating costs will go up as a result of having to conduct an in-creased number of voyages.
Vessel owners will also feel the cost of these regulationsdue to the compliance measures that they must take to staycurrent with their inspections. For example, an increase inthe number of required stability tests means less time onthe water for vessels that would otherwise be generatingrevenue, not to mention the cost of paying for the teststhemselves. These short term compliance issues will be ex-acerbated by the twelve month compliance period that willbegin to run as soon as the regulations become effective.
The changes would be easier to swallow if their necessitywas apparent. Ironically, even with the proposed measuresin place, the Ethan Allen, as a non-Coast Guard inspectedvessel, would probably still have sunk.
The fact that the regulations will only apply to vesselsoperating on federally navigable waters means that pas-senger vessels operating on bodies of water completelyenclosed within a particular state, such as Lake George,
will be exempt from the Coast Guard regulations. Sincesuch vessels will be under the state’s control and the reg-ulatory framework that it provides, it seems that the prob-lem lies not with under-regulation of federally inspectedvessels but with the absence of stability requirements atthe state level that are comparable to existing CoastGuard guidelines.
A conspicuous lack of accidents or any other evidencethat current regulations are insufficient to protect pas-sengers also brings the breadth of the proposed regula-tions into question. Should a pontoon vessel’s inherentinstabilities lead to more stringent requirements for othertypes of vessels such as an offshore crew boat? Whilelumping all passenger vessels into the same category cer-tainly saved our rule-makers time, it also created unnec-essary expenses for passenger vessel owners that have beenrunning a very tight ship.
Likewise, the rationale for maintaining parity withCDC weight estimates on an ongoing basis and imposingstability testing requirements on vessels every 10 years isnot readily apparent. Regardless of whether the new reg-ulations will achieve their intended effect, the passengervessel owner’s never-ending quest for compliance withCoast Guard regulations is likely to become much moredifficult.
