Jonathan K. Waldron, Patricia M. O’neill, and Dana S. Merkel
As the July 1, 2016, effective date for the SOLAS Regulation VI/2 amendments quickly approaches, unanswered questions and difficulties complying with varied international and domestic implementations loom large. In an effort to provide guidance to the industry, the U.S. Coast Guard recently issued a Marine Safety Information Bulletin, dated April 28, 2016 (MSIB Number 009/16), declaring that existing U.S. laws and regulations for providing verified container weights are “equivalent” to the requirements under SOLAS Regulation VI/2.
Although the MSIB provided much needed guidance, the industry is still struggling to establish procedures that adequately address the Regulation VI/2 amendments, taking into account the unique characteristics of various operations and ports. The key to a successful outcome is for stakeholders to continue to work together to establish practical procedures consistent with the Regulation VI/2 amendments and U.S. Coast Guard guidance.
IMO’S SOLAS AMENDMENTS
The International Convention for the Safety of Life at Sea (“SOLAS”) governs the safe operation of ships engaged in international trade, and includes specific requirements related to the safe stowage and securing of cargo in SOLAS Chapter VI. The International Maritime Organisation (“IMO”) adopted amendments to SOLAS Regulation VI/2 in November 2014, which require the verified gross mass (“VGM”) of a container to be certified in the shipping document, signed by the shipper, and provided to the master and terminal in advance of loading the container on the ship. The original language of SOLAS Regulation VI/2 required shippers to provide information on the gross mass of cargo prior to loading. However, problems related to incorrect container weight declarations resulted in improper vessel stowage, delays, damaged or lost containers, damage to equipment and vessels, liability issues, and increased safety risks, among other issues. Such concerns prompted the IMO’s adoption of the Regulation VI/2 amendments, with the goal of supplementing the original language with mandatory procedures by which container gross mass must be “verified” by the shipper.
Under the SOLAS amendments, the shipper must verify the gross mass of a packed container by one of two methods: (1) the packed and sealed container may be weighed using calibrated and certified equipment; or (2) each package and cargo item loaded into the container, including any pallets or other packing and securing material, may be weighed, and add the tare mass of the container to the sum of the single masses in the container using a certified method approved by the port state’s competent authority in which the packing of the container was completed. The resulting VGM must be stated in the shipping document, signed by the shipper, and provided to the master and terminal in advance of loading the container on the vessel. In the event the VGM is not provided to the master, the container may not be loaded on the ship.
COAST GUARD EQUIVALENCY DECLARATION
In its recent Marine Safety Information Bulletin, the Coast Guard stated that existing U.S. laws and regulations for providing verified container weights are equivalent to the requirements under the Regulation VI/2 amendments. The Coast Guard also submitted a letter to the IMO set- ting forth its determination, specifically noting that the current national regime provides the needed flexibility for all entities in the business to ensure that correct verified container weights are provided to the vessel master to facilitate safe loading operations. In support of its determination, the Coast Guard noted that various U.S. industry stakeholders have demonstrated multiple acceptable methods for providing VGM. See MSIB Number 009/16, available at https://www.uscg.mil/msib/docs/009_16_4- 28-2016.pdf.
COMPLIANCE AND ENFORCEMENT
SOLAS, including the Regulation VI/2 amendments, applies to ships engaged in international trade and may be enforced by a vessels’ flag state or various port states. As an international convention, the obligations and responsibilities for compliance with SOLAS requirements fall primarily on owners and operators of ships. In this regard, it is noteworthy here that the Coast Guard has stated that it will not take action against a shipper because the Coast Guard does not believe it has the authority to take action against a shipper absent a statutory amendment to current domestic U.S. law. Rather, any enforcement actions will be against the vessel owner and master in the event a container is loaded without a VGM. However, the shipper will face various commercial and business adverse impacts of any failure to provide a VGM, such as refusal of containers by the terminal or vessel and resulting delays and customer service issues.
Implications for U.S. Shipping Interests
U.S. shipping interests and stakeholders have taken differing approaches to implementing the Regulation VI/2 amendments due to concerns varying from port congestion, lack of necessary infrastructure to support container weighing services, and terminal disruptions and delays. Although the Coast Guard’s recent guidance has prompted terminal operators to take more defined positions on compliance, it is becoming increasingly evident that there is no one-size-fits-all solution, and U.S. shipping interests must be aware of how containers will be handled at each terminal.
While some port authorities and terminal operators, such as those in the Ports of Long Beach, Los Angeles, and Oakland, have maintained that they will not or cannot offer container weighing services, others such as the Georgia Ports Authority have stated that they will provide container weighing services free of charge. Certain terminal operators in the Port of New York and New Jersey and the Port of Baltimore have also confirmed they will offer container weighing services, but for a fee. Meanwhile, other ports and terminal opera- tors, such as the Port of Houston, have announced that they will not accept containers at the terminal unless the VGM has been submitted electronically. Finally, in response to the Coast Guard’s equivalency determination, some port authorities and terminal operators are changing their previously stated procedures. For example, the Virginia Port Authority originally stated it would refuse all containers that did not have VGMs prior to arrival at the terminal, but has since stated that containers without a VGM will be accepted if arriving via gate or rail.
DOMESTIC JONES ACT OPERATIONS
Because SOLAS applies only to ships engaged in international trade, vessels engaged in solely domestic trade are not subject to SOLAS and will not be required to obtain VGMs from the shipper prior to loading containers for any domestic voyage, regardless of the ultimate destination of the containers. However, as a practical matter, containers bound for international ports will likely have VGMs because the vessel that will load those containers for transport to a foreign port will be subject to SOLAS and will require VGMs prior to loading.
According to IMO guidelines, where a container is transported by a vessel to which the SOLAS regulations do not apply and delivered to a port terminal facility without a VGM, it may not be loaded onto a ship to which the SOLAS regulations apply unless the master and the terminal have obtained the container’s VGM on behalf of the shipper. Thus, although the Coast Guard has given the green light for U.S. shippers to use alternative measures to comply with the SOLAS amendment, coordination between the shipper, ocean carrier, marine terminal operator, and vessel operator, and development of best management practices, are essential to ensuring that a container without a VGM, that is ultimately bound for a foreign port, is not loaded on a vessel.
Conclusions and Recommendations
The Coast Guard’s recent guidance seems to provide sufficient flexibility enabling industry to craft procedures best suited to individual ports and operations that will at the same time meet the amended SOLAS Regulation VI/2 requirements. However, such flexibility also results in varied approaches between ports, and even between individual terminals within a port. Although the Coast Guard will not be enforcing the VGM requirement directly against U.S. shippers, the procedures implemented by ports and terminals to comply with the Regulation VI/2 amendments will directly impact shippers.
Accordingly, stakeholder such as ports, terminals, carriers, and vessel owners/operators should initiate and/or complete their VGM action plan as soon as possible in order to prepare for the July 1, 2016, implementation date. In this regard, stakeholders need to work closely together on a port-by-port basis around the world and in the United States to ensure procedures are in place and understood before the deadline. And lastly, action plans should include back-up contingency planning to provide for alternatives if things go wrong on and after July 1, 2016.