*Thank you to NOAA for providing the above pictures.
IMC recently assisted a client whose vessel was alleged to have violated seasonal speed restrictions in U.S. coastal waters designed to protect the critically endangered North Atlantic right whale on 47 occasions between 2018 and 2021. Cumulatively, these violations exposed the company to more than $1.5M in fines.
Fortunately, the U.S. National Oceanographic and Atmospheric Administration (NOAA), the agency that brought the charges, ended up dismissing all charges related to these alleged violations, and closed the case with no penalty assessed.
This client alert reviews what the existing speed restriction rules require, provides details about the case, and shares practice tips and a cautionary note for the future.
I. The Rule
In applicable areas (called Seasonal Management Areas) at applicable times, the rule requires all vessels 65 feet (19.8 meters) or longer to travel at 10 knots or less in certain locations along the U.S. east coast to reduce the threat of vessel collisions with North Atlantic right whales. It is unlawful for any covered vessel subject to the jurisdiction of the United States or entering or departing a port or place under the jurisdiction of the United States to violate this rule.
There is a significant exception to this blanket prohibition. The rule permits a vessel to exceed 10 knots to maintain safe maneuvering speed if such a deviation is necessary due to oceanographic, hydrographic and/or meteorological conditions. Such conditions must “severely restrict the maneuverability of the vessel,” and the need to operate at such a speed must be confirmed by the pilot on board or, when a vessel is not carrying a pilot, the master of the vessel. In the event of a deviation, the reasons for the deviation, the speed at which the vessel was operated, the latitude and longitude, and the time and duration of the deviation must be entered into the logbook of the vessel. The master of the vessel is required to attest to the accuracy of the logbook entry by signing and dating it.
The actual regulation is available here: https://www.law.cornell.edu/cfr/text/50/224.105
A pictorial depiction of the applicable regulations can be found in this compliance guide: Compliance Guide for Right Whale Ship Strike Reduction Rule (noaa.gov)
Useful references related to the rule and its history, as well as many useful links, can be found here: Reducing Vessel Strikes to North Atlantic Right Whales | NOAA Fisheries
II. The Case
The case was initiated in 2021 when our client received a letter from NOAA listing the 47 dates on which a vessel managed by it violated the speed limit between 2018 and 2021. The letter invited the company to submit any documents and other records relating to the alleged violations that would either dispute whether the speed limit was exceeded at all, or explain why environmental conditions warranted a deviation from the rule. NOAA’s case was based on the simplest of evidence: a review of AIS data which, unless inaccurate, conclusively depicted the vessel’s course, speed, location, and duration of the speed limit violation for each of the 47 alleged incidents.
The AIS printouts also depicted a very interesting phenomenon: on virtually every occasion, the vessel was compliant with the speed limit outside the sea buoy and only became non-compliant when inside it, indicating that the violations were almost always associated with the harbor pilot coming and being aboard. This relative lack of culpability by our client pre-disposed NOAA to adopt a reasonable stance with respect to resolution of the case, which was conditioned on our client’s cooperation and demonstration of reciprocal good will. That cooperation and good will was demonstrated by our client during the course of NOAA’s further investigation of this case by:
Providing NOAA copies of logbooks entries for each of the violation dates;
Providing NOAA with pilot cards for each inbound or outbound transit during which a violation occurred;
Allowing NOAA to interview masters from the fleet who were in command of the vessel when some of the alleged violations occurred; and
Collating and organizing data and information into forms most useful to NOAA.
As the statutory maximum for a violation of the Endangered Species Act is $57,527 per offense, and as the violations are also potentially prosecutable as criminal offenses, our client had a significant incentive to cooperate. And due to the potential difficulties of prosecuting a case against our client instead of the party that was truly responsible for the violation, the pilot on board at the time of the incident, NOAA had incentive to be reasonable in the case disposition, which, by dismissing the charges, it ended up being.
III. Practice Tips
While this case disposition was obviously favorable, a similar happy resolution is not guaranteed in future cases, even if pilots can be identified as the primary culprits. NOAA is under significant pressure to “do more” to protect the North Atlantic right whale population, whose entire population is estimated to number only 350 individuals, and whose numbers continue to diminish. Vessel strikes are an ongoing source of whale mortality, as reflected here: https://www.savecoastalwildlife.org/collisions-with-ships.
Even if pilots are the primary culprits for a speed deviation, the vessel’s master is always in charge of everything that occurs aboard a vessel; and if NOAA is unable to gain any traction with the pilots in promoting better compliance with the rule, it is not at all inconceivable that they could rely on this principle and pursue action against an easier target, the owners, operators, managers, and crew of foreign vessels.
To best protect yourself from potential civil or criminal liability, and of course to do the right thing, your vessels operating in the waters off the U.S. east coast need to be aware of the rule and comply with it. To this end, IMC can assist by providing training and by creating vessel circulars or other materials to promote awareness and compliance.
In the event speed deviations are necessary, the regulations require that the reasons for the deviation, the speed at which the vessel was operated, the latitude and longitude of the area, and the time and duration of the deviation be recorded in the vessel’s logbook, and that master of the vessel attest to the accuracy of the logbook entry by signing and dating it. Not only is this the rule, it is a smart practice as well, as it records the information necessary to establish the defense that the deviation was operationally necessary due to environmental conditions. More details are better, particularly since the company and its employees may have to justify their actions relating to events occurring three or more years in the past, as occurred in this case.
If the speed deviation is ordered by a pilot, the regulations require that the need to do so be confirmed. Companies should establish policies that in the event a deviation by a pilot is ordered or noticed, the master should: (1) notify the pilot that the ordered speed violates the 10-knot maximum speed limit; (2) ensure that the pilot acknowledges that the speed limit is being violated, and provides a reason for the deviation; and (3) record as many details as possible in the logbook. The master should also ensure that the pilot card and/or logbook identify the pilot in a legible manner.
IV. Future Developments
Probably as a result of the pressure it is facing with respect to the North Atlantic right whale, NOAA has proposed an amendment to the speed rules that were at issue in this matter (see here: Federal Register :: Amendments to the North Atlantic Right Whale Vessel Strike Reduction Rule).
Of principal interest to foreign operators, NOAA has proposed eliminating the vessel logbook entry requirement in the event of a speed deviation, and substituting a new requirement for vessels to submit an online report to NOAA within 48 hours of the speed deviation detailing the circumstances and need for the deviation. Proposed information that would have to be submitted includes:
Vessel name, length overall, draft (at the time of the deviation) and where applicable, the vessel IMO number and Maritime Mobile Service Identity (MMSI) number;
Reason for the deviation: (a) maneuverability constraints, or (b) emergency;
Date, time, latitude, and longitude where deviation began;
Date, time, latitude, and longitude where deviation ended;
Speed or average speed at which the vessel transited during the deviation;
Wind speed and direction at the time of the deviation;
Information on water current speed and direction at the time of the deviation, including measurements from the vessel acoustic doppler current profiler (ADCP), if the vessel is equipment with this device;
If the vessel was operating within a restricted/dredged channel, indicate whether one-way or two-way vessel traffic was present within the channel at the time the deviation was employed;
The vessel master, and, if the vessel was under pilotage, the pilot, must attest to the accuracy of the information contained within the Report. If the vessel was under pilotage, indicate the name of the harbor pilot;
An additional narrative (300 word limit), if desired, to explain the circumstances of a safety deviation.
This change is still in the proposal stage; it does not yet exist as a rule, and it may not be adopted at all in the final rule, or it may be adopted but with some modifications. Companies operating in the U.S. east coast should stay abreast of developments regarding this proposed rule change, as the final rule that is adopted will apply to your vessels and may change the current compliance requirements.
V. Conclusion
As has been demonstrated, the penalties for non-compliance with the seasonal 10-knot speed limit can be significant. IMC can help to promote compliance through tools or products as previously discussed. Due to their significant, high-level Coast Guard legal and regulatory experience and expertise, IMC’s regulatory compliance team can also assist in managing the consequences of a violation were one, or some, to occur – as it was able to do with great success in this case.
About the Author:
Captain Andy Norris, U.S. Coast Guard (retired), has 22 years of experience as a Coast Guard attorney advising Coast Guard commanders and ensuring compliance with applicable laws and regulations. He currently works as a senior regulatory compliance consultant at Independent Maritime Consulting, LLC.
Andy can be reached at: +1 (401) 871-7482,
or e-mail: anorris@independentmaritime.com