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A Reassessment of the Marine Salvage Posture of the United States 3 NATIONAL SALVAGE POSTURE ISSUES The regional assessments in Chapter 2 point to a number of broad issues associated with salvage readiness and capability. These concerns are fundamental to the development of a comprehensive understanding of marine salvage in the United States. This chapter analyzes these issues. They are: Salvage business conditions Decision making in salvage incidents National salvage policy Salvage human resources Rescue towing Marine fire fighting Cargo transfer, including lightering Damage stability information Salvage in the presence of hazardous cargo Jettisoning Safe havens Salvage readiness of vessel and crew The contribution of the U.S. Navy in national salvage response SALVAGE BUSINESS CONDITIONS Salvage as a commercial effort traditionally has focused on the saving of property—ships and cargo. The salvor's ability to make money depends on the commercial climate, the competition, the salvage contract, and government regulation. Salvage capability in an area depends on demand, which in turn hinges on vessel casualties. The International Salvage Working Group reports that over the last 12 years, vessel casualties have declined annually worldwide, despite increasing numbers of ships at sea (Tecnitas, 1992). This trend is due to significant improvements in marine safety, and if it continues, it can only make it more difficult to sustain commercial salvage capability. Demand for services will not produce enough income for salvors to operate without other, more dependable sources of income, such as ocean towing or marine engineering. Such activities have become salvors' core businesses, while salvage is undertaken only as opportunities arise. The problem with this practice is twofold: it diminishes the salvage award, and it tends to discourage salvors from remaining in the business. These points are explored later in this section. The salvage industry encompasses three more or less distinct segments: Full-time professional salvors maintain organizations, personnel, ships, and specialized equipment for salvage. Professional salvors range from large companies with considerable capital investment and widespread operations to smaller businesses with limited resources serving restricted geographical areas. The latter are most common in the United States. Ships equipped for
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A Reassessment of the Marine Salvage Posture of the United States salvage are extremely important, but the dedicated salvage ship waiting on station is no longer the hallmark of the professional salvor. Instead, professional salvage companies have experienced workers available on call and a pool of specialized salvage equipment and are willing to drop routine work to handle emergencies. Independent salvors are often one-person operations and vary widely in knowledge and experience. They seek opportunities for salvage but maintain little equipment, preferring to rent it for each job. Often they advise the shipowner on equipment that should be obtained for a specific casualty. General marine contractors may provide salvage on an ad hoc basis, pursuing salvage work in a local area but not dependent on it. Such contractors are used mainly for non-time-critical salvage, such as wreck removal and marine repair. They may supplement their resources by subcontracting with other salvage providers in the region. The use of independent salvors and general marine contractors, in combination with the declining casualty rate, have put immense financial pressure on the professional salvor. Independent salvors and general contractors often charge shipowners less than professional salvors because they don't have high overhead costs for specialized salvage equipment and personnel. Moreover, independent salvors and general contractors take the lower priority harbor clearance work that used to be the professional salvor's bread and butter, offsetting the expense of maintaining otherwise underutilized equipment. Revenues generated by such ships often do not offset costs, which have driven salvage ships from their former stations at key points in shipping lanes with a history of accidents. As an alternative, salvors have developed rapid response capability, drawing on experienced, trained personnel and equipment from central bases and strategically located equipment stockpiles. Salvors often find it practical, expeditious, and economical to charter needed ships and lease common equipment locally, so that they purchase and carry only specialized equipment. By changing their mode of operation to meet altered conditions, professional full-time salvors have narrowed the gap between the two. This shift also has blurred the distinction between the professional and the independent salvor. In both the Mega Borg and the Exxon Valdez incidents,1 the salvors (or salvage company) had years of experience but were viewed as operating as independent salvors. The growing emphasis on environmental protection complicates the salvage business, but doesn't necessarily produce additional income (NRC, 1994). The traditional criterion for success in salvage has been the saving of property. The definition of success has changed as environmental protection has assumed increasing importance. Indeed, environmental concerns often govern operational decisions during salvage, and environmental protection has become—in addition to the saving of property—a determining factor in the success of salvage operations. Frequently, environmental protection is best achieved by saving the property in peril—the vessel. Commercial salvage transactions must be covered by a contract that is fair to all parties and ensures adequate rewards for the service provider. The "no cure, no pay" open form contract has been most common in the international salvage industry. A number of these contracts exist: Lloyd's Standard Salvage Agreement, frequently called Lloyd's Open Form (LOF), is the most common and best known. This type of contract is not favored by American salvors, particularly those on the West Coast, who may deploy equipment long distances and, on arrival, find the casualty so deteriorated 1 All instances of salvage in U.S. waters reported to the committee are listed in Appendix E.
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A Reassessment of the Marine Salvage Posture of the United States that no ''cure'' is possible. In addition to encouraging the maintenance of professional salvage organizations, an open form contract provides a set of terms without addressing specific compensation. The terms are well known, reducing any need to haggle over details and delay the work. Shipowners often feel the open form contract favors salvors, but this is not the case. Such a contract is a high-risk agreement for salvors, especially with regulators playing an expanding role in salvage operations. Under the LOF and other open form contracts, the salvor's award is determined by arbitration. Although arbitrators may be experienced and knowledgeable regarding salvage, the amount of an award is not predictable. The U.S. Supreme Court, in the case of The Blackwall,2 set forth criteria for determining the proper amount of a salvage award. In brief, these are: Labor expended by salvors Promptitude, skill, and energy in rendering services Value of property employed Risk incurred Value of property saved Degree of danger from which the property was rescued The Blackwall decision may have binding value as a precedent in U.S. courts only; nevertheless, its criteria are generally followed by arbitrators in establishing awards both in foreign and U.S. courts. The courts have held that a salvor who maintains expensive equipment and personnel solely to render salvage services is entitled to a greater award than other responders. But in the 1990s there are so few calls for such services that it seems counterproductive to penalize professional salvors who perform work other than salvage. This reality has been recognized to some degree. The U.S. Court of Appeals for the Second Circuit has stated, for example, that "exclusive devotion of a company's resources to salvage is not a condition precedent to recognition of a professional salvor's favored status,"3 and courts and arbitrators have just begun to recognize "part-time professional salvors" as "deserving of an increment due to their availability to persons in distress."4 But the salvage industry—which cannot rely solely on salvage and must accept other work is nearly unanimous in its view that unless a contract specifies an amount, there is no assurance the award will be adequate. Accordingly, no-cure-no-pay salvage contracts are falling out of favor, not only because the awards may be inadequate but also because arbitration is often lengthy. While salvors and other claimants may feel that "justice delayed is justice denied," some progress has been made in addressing this complaint. LOF-90 has introduced steps to cut delays in arbitrations, and arbitral procedures under the Japanese Shipping Exchange Agreement are deliberately short, so that the salvor receives a prompt award. When compensation depends on successful results, any work carries high risk. Salvors can spend large sums and receive nothing in return. Yet salvors faced with an impossible or unprofitable job cannot simply declare "no cure" and walk away. They must follow established procedures to be relieved of their contractual obligations, while the salvage activities, costs, and losses continue. Public concern for environmental protection and a parallel increase in environmental legislation exacerbate the uncertainty of the business aspects of salvage. Regulatory intervention that may occur outside the business framework of 2 77 U.S. 1, 10 Wall. 3 B.V. Bureau Wijsmuller v. U.S., 1980 AMC 2331 at 2356. 4 Bindon v. Jones, 1986 AMC 1403 at 1405.
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A Reassessment of the Marine Salvage Posture of the United States salvage adds a factor the salvor must consider in protecting income. A salvor taking an open form contract in today's liability environment takes an undefined risk—one salvors rarely can afford. The risk of pollution is so great that the no-cure-no-pay provision of the LOF was changed in 1980 to provide a safety net for salvors. This revision allows for departure from the strict no-cure-no-pay principle in some cases by assuring that salvors be compensated for costs incurred to minimize pollution from a casualty. The International Salvage Convention of 1989 broadened the importance of a salvor's efforts to minimize or prevent pollution by including those efforts as a criterion for setting awards. In addition, the convention provided that, if the vessel was lost but efforts to prevent or minimize pollution were demonstrable, the salvor could be eligible for expenses, an additional award up to 30 percent of expenses, and—in special circumstances—100 percent of expenses. In addition, a forthcoming International Salvage Union standard wreck removal contract changes the terms from fixed price, no cure no pay, to fixed price with payment for progress. Even with these changes, a perception exists that the traditional open form contracts, with award based on salved value, are inappropriate given that the measure of success is changing to emphasize environmental protection. For all the above reasons, the no-cure-no-pay principle is losing viability. Most American salvors prefer to work under a daily rate contract, often with an incentive bonus, such as a percentage of salved value. These contracts protect salvors' income and eliminate many problems associated with open form contracts and arbitrated awards. They are safe even under OPA 90, because the salvor is paid for services provided regardless of success or failure. When conditions combine to reduce profits to the point where they are no longer satisfactory, salvors leave the industry. This has occurred to some extent in the United States. The system of retainers provided by the tanker industry to ensure the availability of salvage resources as required by OPA 90 has created a new revenue source for salvors—a retainer to ensure the provision of salvage resources in the future. For the majority of individuals and companies viewing themselves as professional salvors, such a retainer may be the factor that convinces them to remain in the business. The long-term effectiveness of such a system in maintaining professional salvors has yet to be proven, since retainers are neither required nor standard practice. The oil-transport industry will continue its search for the lowest-cost option in fulfilling its responsibilities under OPA 90 and other regulatory mandates. However, if more marine transportation companies act as theft own salvors, providing retainers only for companies with special expertise, the influence and viability of the traditional salvors may be threatened further. Findings The salvage industry is undergoing major changes, which are driven by three primary factors: The industry has shifted from servicing the private sector, by saving vessels and cargo, to a public service role of preventing casualties from damaging the marine environment and the local or broader economy. The business structure of the industry has changed from full-time dedicated salvage companies to organizations for which salvage is either a segment of their overall business or coincident to other roles in general marine contracting. Vessel casualties have declined, and there has been a corresponding reduction in opportunities to earn salvage revenues. These factors continue to depress the salvage industry, along with traditional compensation practices that have not kept pace with the risks and costs associated
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A Reassessment of the Marine Salvage Posture of the United States with salvage, and which are only recently undergoing change. The effect of OPA 90 on the salvage industry is uncertain. The regime of retainers fostered by regulations arising from that law will provide additional income for at least some segment of the salvage industry. But whether that revenue stream is sufficient to further improve the economic viability of the salvor and the marine salvage posture of the United States is not yet known. The improvement in salvage capability due to OPA 90 has been supported solely by the tanker industry. This approach places an undue burden on one segment of the marine industry to provide resources that may be tapped by the entire industry and may not produce sufficient revenue to maintain current capabilities over the long run. The current liability atmosphere, charged by the threat and expense of marine pollution related to a vessel casualty, has significantly increased the salvor's financial risks and the costs of providing salvage assistance. The standards for compensation have not kept pace with these increased risks and costs. SALVAGE DECISION MAKING A marine casualty that requires salvage services is an emergency. The need for clear, positive decision making continues throughout the emergency, and there is no room for error, equivocation, or delay. The consequences of faulty decision making can be catastrophic. These consequences alone demand a tough approach to decision making. Three influences work against logical and methodical decision making: The situation is dynamic. Many of the dynamic influences—notably weather—are completely beyond the control of personnel on the scene. A clear and complete picture of the situation is not available in the beginning. The picture develops as the operation proceeds, and in some cases it is never complete. Accordingly, salvage plans and decisions are made with limited information and are modified and updated as new information becomes available. Casualties usually deteriorate over time. It is not possible to delay decisions without increasing the risk to the vessel and the risk of side effects, such as pollution. Analysis of and response to a casualty require expert knowledge applied expertly. Salvage decisions are time-critical, on-the-feet judgments, requiring practical knowledge of seamanship, seat-of-the-pants engineering, and the ability to analyze, extrapolate, and decide. The expertise needed to make salvage decisions comes only from experience with casualties in the field. Knowledge and experience with vessel casualties is not widespread in the marine industry—most mariners go through their entire careers without experiencing a major casualty. Coast Guard officers and other regulators may acquire broad knowledge of maritime matters, but may not have much experience with marine casualties due to changing assignments and extensive collateral duties. Representatives of environmental agencies are generally in very unfamiliar territory in dealing with a casualty. Salvors, surveyors, and others who deal with casualties regularly are usually best equipped to make sound salvage decisions. Traditionally, salvage decision making involved only the vessel owner, the underwriters who had an interest in the cargo and the vessel, and the salvor. The owner and underwriter usually deferred to the salvor, once hired. Other parties were not represented, even though the interests of the general public and the environment were affected by the decisions made. That small decision-making team, able to act quickly and authoritatively, has been replaced in incidents where environmental or
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A Reassessment of the Marine Salvage Posture of the United States public harm are a potential outcome by a partnership of the Coast Guard, the affected state(s), and the shipowner's predesignated representative. As a result, the decision-making process now incorporates the interests of a number of additional affected parties, and may not be able to respond as quickly and directly as in previous times. Figure 3-1 shows the partnership regime that exists under the National Response System (NRS) and the Unified Command System (UCS). The NRS is a hierarchy of planning and response teams composed of representatives from federal, state, and local agencies (Johnson, R., 1993). As the figure shows, these agencies have input into the NRS through a variety of mechanisms, but actual field operations are directed by the federal on-scene coordinator (FOSC), the owner's designee (referred to in the Figure as RPOC, or responsible party on-scene coordinator), and representatives of the affected state(s). This on-site decision-making process constitutes the UCS. While this partnership was designed for incidents that threaten or actually produce pollution, the response to any major vessel casualty may be organized in the same manner. This organization, modified from the Incident Command System widely used in firefighting and adapted to marine casualties, is in direct contrast to the former decision-making process in which the salvage situation was negotiated solely between the salvor and the vessel owner, with the overriding concern the saving of the vessel and the cargo. In recent years, regulatory authorities, particularly the Coast Guard, appear to have gained so much legislated power that the vessel owner and salvor may feel the partnership is nonexistent or at least lopsided. The relationships among the staketholders—ship and cargo owner, insurers, the general public, and the environment—have not changed; only the manner of decision making has changed. Figure 3-1 Unified command structure.
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A Reassessment of the Marine Salvage Posture of the United States However, adding stakeholders to the decision process has the potential to have a significant effect. At best, time passes during the discussions and debate, and efforts may be diverted from solving the problem. At worst, inappropriate directed action may eliminate viable options and degrade overall operational effectiveness. On the positive side, however, the vetting of “what-if” alternatives may lead to a solution that, from the perspectives of all stakeholders, provides superior overall response, even if delay allows the problem to worsen in the interim. The involvement of the Coast Guard and others appears to be the rule rather than the exception in incidents involving actual or potential pollution. In the recent cases of the Mega Borg in the Gulf of Mexico and the Ocean 255 in Tampa Bay, the Coast Guard asked the Navy to provide standby support. In both instances, salvors under contract to the Navy provided oversight and consulting services to the Coast Guard during the salvage effort. In the case of the Ocean 255, the Coast Guard strike team performed the actual cargo removal, with the support of outside contractors. The Coast Guard is directed to "shoot first, and ask questions later" in responding to casualties involving potential or actual pollution, directing and prescribing specific action. The record to date of Coast Guard decision makers in salvage situations occasionally has led to discussions about the agency's unilateral decisions regarding salvage response without due regard for contributions of the vessel owners and their salvors. However, until the policy results in intolerable interference, no change is expected. In addition to the expanded decision-making team, other factors complicate emergency response. In particular, the proliferation of environmental regulations and the variations among them in different jurisdictions complicate salvage decision making. An operationally sound decision may violate one or more environmental regulations and could lead to criminal or civil penalties. Moreover, even the threat of environmental penalties may force the choice of operationally and technically poor options. Attorneys properly act as advocates for their clients and represent their interests, but the advocacy of a particular position during a dynamic emergency can delay the process and divert decision makers from the soundest course of action. Media attention, perhaps founded on less-than-expert technical understanding, may shift public perception away from the true situation and heighten public pressure for a specific action. Sound salvage decisions seldom affect all parties alike. Decision making has changed because of the need to ensure that all parties' interests are addressed and conflicts minimized. The Coast Guard has met this need, at least in potential pollution incidents, by incorporating the UCS. This system is based on the premise that all parties must contribute to the strategy, planning, operations, and use of required resources, and, therefore, that a decision-making partnership is needed involving the FOSC, the responsible party, and the affected federal and state jurisdictions. The UCS is intended to allow for the FOSC to resolve disputes, ensuring that decisions are made in a timely fashion. The UCS is a developing concept, which will change and evolve with experience. The mandate for the marine industry is to be involved in that process, and, to the extent that salvage is part of response planning, to get the salvage industry involved as well. Findings Decision making in response to vessel casualties, once the purview of salvors, owners, and insurers, has changed significantly, particularly when it relates to casualties with the potential for marine pollution. Decision making at the site of a casualty now relies on the consensus of a unified command, consisting of the federal
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A Reassessment of the Marine Salvage Posture of the United States government, the responsible party (the owner or designee), and the affected state government(s). Transferring authority to a committee may delay time-critical salvage decisions and tends to restrict the salvor's actions. Salvage plans now need to be vetted through the UCS, and any deviations from agreed-upon plans of action are performed at the peril of the executing party. NATIONAL SALVAGE POLICY The 1982 NRC report concluded that "The Congress should update the national statement of salvage policy (10 USC 7361-7367, Salvage Facilities Act of 1948) to recognize the vital role that salvage plays in minimizing the public consequences of maritime casualties, and to harmonize the Salvage Act with the laws on intervention and pollution response" (NRC, 1982). Despite that recommendation, there has been no change in the national salvage policy in the last decade. Current Statutory Status of Salvage The current national salvage policy, as contained in the Salvage Facilities Act, may be summarized as follows: "The public interest is served by maintaining salvage capability to provide for the national defense, especially to ensure readiness for war mobilization" (NRC, 1982). A number of other U.S. statutes also pertain to salvage. These include "Cabotage Law" (Act of June 11, 1940), the Saving Life and Property Act of 1949, Waterways Management Act, the Clean Water Act of 1972, the Intervention on the High Seas Act of 1974, and most recently, the Oil Pollution Act of 1990 (OPA 90). (These laws are summarized in Appendix H). Each of these statutes contains specific references to various aspects of salvage, but none clearly outlines a concise statement of national policy as it relates to salvage. Moreover, none of the statutes states explicitly that an additional function of salvage is to minimize pollution (although that responsibility is implied), and none addresses the public safety role. The most concise, general statutory statement of U.S. salvage policy is found in the Salvage Facilities Act. This act was promulgated following World War II, "to authorize the Secretary of the Navy to provide salvage facilities and for other purposes." While there has been no court decision interpreting this act, the legislative history shows that Congress had several objectives: To provide salvage resources to protect the redeployment of government-owned war materiel on chartered ships (but not in excess of national defense needs). To foster (but not necessarily subsidize) the commercial salvage industry. To allow (but not require) the Navy to render salvage services to private vessels when commercial salvors are not available, charging for those services to support the Navy's salvage facilities. This statement of policy has not been addressed or reissued since its promulgation in 1948 and does not reflect either the current international situation as it pertains to national security or the current commercial salvage situation. Environmental aspects of salvage policy are suggested in OPA 90, which addresses limited salvage functions carried out to prevent or minimize pollution. These provisions, limited to vessels carrying oil as cargo, have led to the adoption of Coast Guard regulations requiring such vessels to ensure the presence of lightering and firefighting capability and salvage support by "contract or other approved means"5 5 33 CFR Part 155.1035 (d)(6).
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A Reassessment of the Marine Salvage Posture of the United States as part of their federally required contingency and response plans. Some states, specifically Washington, Virginia, Florida, and Texas, apply the requirements for contingency and response plans to a broader class of vessels, including those carrying significant amounts of fuel. The United States has ratified the International Convention of 1989, which recognizes that one of the goals of successful salvage is to prevent or minimize damage to the environment from vessels or their cargo by incorporating the salvor's skill and efforts to do so into criteria for determining salvors' awards. The convention does not require that the vessel or cargo be saved for the salvor to be eligible for compensation for efforts to prevent or minimize environmental damage. Although the convention is not yet in force internationally, its ratification domestically defines the direction Congress expects national policy to follow. Current Government Salvage Policies The role of government agencies in salvage has not been defined explicitly, although a number of agencies, notably the U.S. Navy, Coast Guard, and Army Corps of Engineers, play an active role in salvage response. In accordance with the Salvage Facilities Act, the Secretary of the Navy has entered into competitively awarded contracts with three commercial salvors for services beyond the Navy's capabilities. These contractors are compensated for their costs for operations conducted. Additional salvage-related contracts are awarded to companies that provide limited services using equipment owned and furnished by the Navy. In summary, through the Navy, the United States provides limited support to the commercial salvage industry through standing salvage contracts, contracts for salvage-related services, and leases of salvage and pollution abatement equipment. The Coast Guard, in addition to providing an FOSC for major vessel casualties, maintains three regional strike forces, on the Atlantic, Gulf, and Pacific coasts. These assets are available at the request of a FOSC to assist in marine casualties where pollution mitigation is a concern. The FOSC also is authorized to request the assets and contracts of the Navy's supervisor of salvage, to further assist in mitigating impacts of marine casualties. The Corps of Engineers is responsible for maintaining the waterways of U.S. ports and can provide assets for spill response. For example, floating cranes used to remove wrecks that pose hazards to navigation or block channels and dredges can be used in oil spill response. A dredge was pressed into service in the Exxon Valdez case. It is the policy of government agencies to utilize government assets to help private vessels only when commercial assets are not available. However, in incidents that threaten or cause marine pollution, the liability implications of OPA 90 and Congress' expressed desire for rapid and effective response have induced the Coast Guard to take a proactive approach—to respond immediately and sort out the consequences later. In recent cases, such as the Mega Borg and the Ocean 255, the Coast Guard mobilized its own equipment and requested Navy support within hours of the accident. Navy salvage contractors requested by the Coast Guard were on the scene within six hours in the latter incident and, as noted earlier, the Coast Guard strike team performed the cargo transfer and subsequent dewatering of the cargo tanks in concert with a salvage company. National Salvage Policy Considerations Since the 1982 NRC report was published, several trends have emerged that serve to reinforce its conclusions. Among these trends are:
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A Reassessment of the Marine Salvage Posture of the United States The aforementioned shifting emphasis in salvage from private service to a more public or societal role of protecting the environment and the economy. Heightened public awareness of the adverse impacts of pollution from vessel casualties such as the Exxon Valdez, and the translation of such awareness into broad congressional initiatives such as OPA 90. Recognition of potential economic losses resulting from disruptions of port activities due to a marine casualty. Changing military needs stemming from the end of the Cold War. The need to ensure both a consistent federal approach to salvage and timely and effective response is becoming more apparent. In the Exxon Valdez case, the need for combined private and federal resources, including the Coast Guard strike team, Navy pollution response equipment, and various Department of Defense (DOD) aircraft for transportation, demonstrated that interaction between the public and private sectors is necessary to respond to a major pollution casualty. Likewise, the Persian Gulf war confirmed the need to maintain, through the Secretary of the Navy, a significant salvage posture capable of functioning throughout the world to protect national security. Finally, recent incidents involving the closure of the Houston Ship Channel for several days demonstrated the potential for adverse economic impacts that is neither effectively nor rapidly addressed by either the public or the private sector consistent with an integrated national policy. It is clear from the definition of salvage used in this report (see Chapter 1) and the 1982 NRC report that all elements of the marine commerce system—whether public or private assets, oil or hazardous material carriers, or bulk and cargo carriers—may be affected by marine casualties and therefore may benefit from having a comprehensive salvage capability available in U.S. waters. As a result of recent legislation, primarily OPA 90, changes in salvage capability are being financed in part by oil carriers through a system of retainer agreements. Such regulation of one segment of the marine commerce system, while it may improve salvage capability, focuses only on pollution response and therefore may not provide for the type of comprehensive salvage policy the nation requires. National salvage policy requirements have changed from those stated in the Salvage Facilities Act to include the following goals: protect the national security; minimize or prevent environmental impacts due to pollution from marine casualties; protect public safety; and ensure minimal disruption to the U.S. economy resulting from marine casualties in the nation's ports and waterways. A number of alternatives were considered for updating the national salvage policy. For example: Develop a national, publicly funded marine salvage capability patterned after those in countries such as France and South Africa. (A similar capability supported by the U.S. Navy existed in the United States during the 1950s and 1960s but was terminated in the late 1970s due mainly to economic viability.) The fiscal implications of such a commitment may rule out this alternative, given the current political and economic climate. Rely on the regulatory mandate that compels one segment of the marine community—the liquid cargo carrier—to provide private support through contract or other means for selective salvage capabilities. This alternative may place a disproportionate burden on one segment of the industry to provide salvage capability for the overall industry and the public good. Expand the regulatory mandate to encompass all significant elements of marine commerce. This change would require specific statutory authorization, but it may be consistent with the principle of fairness by suggesting that all the elements posing the risk should shoulder the burden of protection from that risk.
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A Reassessment of the Marine Salvage Posture of the United States Place stronger restrictions on the use of government resources in salvage incidents, with the expectation that the private sector would have more incentive, both in terms of financial rewards and response needs, to be prepared to respond to marine casualties. This alternative may be inconsistent with both the direction of the Congress in OPA 90 and the economic conditions in the marine salvage industry. Codify or clarify the essential salvage roles of government in minimizing public consequences to the environment, the economy, and public health and safety in conjunction with meeting national security needs. At the very least, the policy would require a clear definition of government agency roles and their relationships to the private sector. The policy should clarify the following two functions. First, in marine casualties where life, the environment, or other public interest is threatened, the U.S. Coast Guard is responsible for oversight and/or direction of the response to the casualty. Second, the U.S. Navy should develop technical programs advancing salvage response capability and equipment, provide technical assistance in nongovernment marine casualties requiring salvage response when requested by either commercial and/or government agencies, contract for salvage services in excess of internal capability (and make such services available on request), and provide training for U.S. Navy and other personnel. A clear statement of noncompetition with private resources would also be required. Implementation of any of these alternatives would have to address specific elements of salvage operations, such as rescue towing, firefighting, lightering, adequacy of training, minimum qualifications of salvage personnel, wreck removal, deepwater search and recovery, and harbor and channel clearing. Findings There is no clear, concise statement of national salvage policy that addresses the role of salvage in minimizing the public consequences of marine casualties. Various federal laws, statutes, and regulations imply that salvage plays a part in protecting the public, but that role is not stated explicitly. Absent a stated policy, the Coast Guard and the Navy have assumed significant roles in management and oversight of marine casualties, particularly those involving pollution and the threat of pollution, through interpretation of their roles arising from Congressional mandates such as OPA 90. The primary motivation for maintaining a salvage capability has shifted from concern for private assets—the vessel and cargo to a more public or societal interest in protecting the environment and the economy from the impacts of a vessel casualty. Current improvements and changes in salvage capability are largely driven by regulations requiring vessels carrying oil to ensure that selected salvage capability is available in the event of a marine casualty that involves actual or threatened pollution. These changes are directed at mitigating the risk of pollution and do not constitute the broad-based improvement that may be needed to address all public concerns. The costs of implementing the changes are born by only one segment of the marine transportation industry. THE CONCEPT OF THE "PROFESSIONAL SALVOR" The 1982 NRC salvage report observed that "[m]ost of the few companies that conduct marine salvage in the United States see salvage operations as supplements to their primary operations of marine transportation, point-to-point towing, or marine engineering. Time-critical salvage incidents occur too infrequently and sporadically,
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A Reassessment of the Marine Salvage Posture of the United States Since 1986, many computer programs for salvage assessment have been developed and are commercially available at reasonable prices. In the United States, there are at least a dozen programs capable of supplying damage assessment information.9 Thus, there were few analytical tools available to salvors into the mid-1980s, whereas there is now a wide choice. The U.S. Coast Guard, the Navy, most major oil companies, and many of the larger shipping lines maintain in-house capabilities using one of the newer computer programs. For shipowners who lack the technical staff or who do not wish to maintain in-house salvage programs, classification societies will provide this service. With a program and preloaded ship characteristics loaded on a portable computer, the salvor can quickly estimate damage stability, residual strength of the damaged structure, oil outflow, and grounding force. The ability to run sample loading conditions in minutes allows the salvor to rapidly calculate the effects of proposed cargo shifts on the vessel. Today's salvor has tools that take much of the guesswork out of salvage operations. Fairly precise calculations can help determine what to do to refloat the ship without inflicting damage, while allowing for damage conditions. These tools, combined with the experience of a competent salvor, go a long way toward ensuring successful salvage. However, as with all computer programs, the user must understand the assumptions and limitations of any program and use sound judgment in applying the results. Too often, as the committee was reminded, the results of a computer program are treated as though they are ''good as gold,'' when in fact they may be based on erroneous assumptions or limited data and may yield answers that are not viable in a given incident (Edgar, 1993). The salvor still, as was the case prior to these computer aids, makes significant estimates of the vessel's damage. These estimates are vital to the solution, whether computer-aided or arrived at manually. In the past, salvors had limited access to damage stability information and tools for working with that information. This situation has improved, not only in terms of the tools available but also in the percentage of the marine fleet that maintains damage stability data, either on the vessel or ashore within easy reach. In addition, OPA 90 requires that all tank vessels have on board or readily available information on damage stability and vessel construction.10 The classification societies and the Coast Guard maintain vast databases of stability and construction data that is becoming available on a real-time basis for use in a marine casualty. 9 The following list is representative of the programs available to assist in salvage analysis. Acronym Descriptor Organization SHCP Ship Hull Characteristics Program NAVSEA SCPS Shipboard Contingency Planning System ABS GHS General Hydrostatics System Creative Systems FCCS Flooding Casualty Control Software NAVSEA/USCG POSSE Program of Ship Salvage Engineering SUPSALV/Herbert Engineering Corp. CARGOMAX Cargo Loading Program Herbert Engineering Corp. HECSALV Herbert Engineering Co. Salvage Program Herbert Engineering Corp. AUTOHYDRO Automated Hydrostatic Program Coastdesign BALLAST Balanced Loading by Automated Stability & Trim Pacer Systems NAUTILUS Nautical Loading System New Wave Systems PLAN Programmed Loading & Analysis Frank Chou Associates MECAS Marine Engineering Casualty Analysis System Frank Chou Associates 10 33 CFR 155.1035(c)(5).
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A Reassessment of the Marine Salvage Posture of the United States Findings The availability of damage stability information, either on a vessel or readily accessible on shore, has improved considerably in the past decade. This trend will continue, especially for tankers calling on the United States, due to the OPA 90 requirement for ready availability of such information. The number and capabilities of tools available to salvors have increased dramatically with the proliferation of computer programs that can provide more detailed information in less time than was possible in 1982. However, these programs depend on the assumptions inherent in computer models, the completeness and accuracy of the data, and the analysis of the results. Salvors need to recognize the limitations of such tools. SALVAGE IN THE PRESENCE OF HAZARDOUS CARGO In recent years, hazardous cargo shipments have become more common on the high seas. This trend is commanding serious attention from mariners, environmentalists, government authorities, and salvors. The carriage of liquified natural gas, arsenic, ammonia, chlorine, cyanide, and pesticides, either in containers or in bulk, poses a serious potential hazard. It is certainly a credit to the carriers of such products that accidents have been few, but there have been some incidents. Some arsenic containers were recently lost off the coast of New Jersey; a lash barge (i.e., a lighter stowed aboard a ship) that broke loose from an ocean carrier during heavy weather was delivered to New York emitting deadly fumes caused by the commingling of cyanide and acids. In both cases, full encapsulation of the lost cargo was required. In the arsenic case, underwater robotics played a major role in the recovery. The lash barge was emptied successfully and salved after careful separation of the cargo by a team of highly trained hazardous materials (hazmat) specialists. Salving hazardous cargoes begins with identification and analysis of the risk. This task may require sophisticated testing by highly trained, specialized chemists or technicians; most salvors lack this capability. A study by the Chemical Manufacturers Association (CMA) concluded that there is no capability in the United States to respond to a major spill of hazardous materials (CMA, 1992). A high degree of specialization of skills and equipment is usually required, not only for onboard salvage, but also throughout the materials handling process to the final destination or disposal. Salvors in the United States must rely on hazardous waste remediation companies, which are subcontracted to identify, handle, and dispose of hazardous and toxic cargoes. Only one U.S. salvage company, based in the Northeast, has in-house capability for remediation and disposal of hazardous and toxic cargoes. This capability was developed through acquisition and is not the result of training or experience within the company, but it has allowed for the integration of salvors and specialized hazmat personnel in cross-training and cooperative salvage solutions. Handling and disposal of dangerous or hazardous cargoes requires not only personnel trained to identify and quantify the risk but also specialized equipment for handling and disposing of such cargo. As a minimum, hazmat personnel are required by law to have 40 hours of training, approved by the Occupational Safety and Health Administration, with an eight-hour refresher course each year. Hazmat personnel also must have, by law in most states, a complete medical and physical examination every six months. By contrast, U.S. salvage contractors seldom have the requisite materials-handling equipment, analysis capability, environmental monitoring tools, appropriate transportation equipment, or safe disposal techniques. It appears that the only solution available to salvors today, with rare exception, is
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A Reassessment of the Marine Salvage Posture of the United States preselection of an experienced hazmat contractor who can provide support as needed. Yet there is little evidence of routine cooperation among salvors and hazmat contractors today. Regional and state emergency services teams generally lack the knowledge and experience to board a vessel and deal with dangerous cargo. Moreover, they often are precluded by their regulatory role from conducting such operations. Recently, Coast Guard strike teams have undergone extensive training in the assessment and handling of hazardous cargoes. The strike teams are probably the most experienced and trained forces available to respond to a hazardous material casualty, although to date their role has been limited. However, if the gap in commercial capabilities persists, the strike teams may serve as the primary resource in such incidents. The salvage role of the government, particularly the strike teams, continues to evolve. Where government enforcement and response should begin and commercial salvage should join and complete the effort continue to be debated. Casualties involving hazardous cargoes pose the highest likelihood of danger to the public and the environment. The federal government is expected, at minimum, to continue to maintain a significant presence to guide salvage efforts to successful conclusions. Ultimately, the effectiveness of that presence will depend on the quality of commercial salvage capabilities. There does not appear to be sufficient economic incentive for the salvage community to develop a comprehensive, self-sufficient, total response capability for hazardous cargo casualties. The most viable alternative, employed only to a limited degree, is for the salvor to have a preexisting subcontract with a qualified hazmat contractor. It is only by preselection and integrated training before a casualty occurs that a successful result can be assured. Assessment of the nation's ability to handle hazardous and toxic cargo properly may well be the next principal focus of government, environmental, and marine industry interests in the 1990s, now that OPA 90 has been implemented. Findings The marine salvage community does not normally maintain in-house capabilities to perform salvage in the presence of hazardous substances. Most salvage companies must obtain the support of an experienced, land-based hazmat contractor to proceed with salvage where hazardous materials are involved. With rare exceptions, little experience has been gained with this type of combined effort. Coast Guard strike teams have extensive training in responding to marine incidents involving hazardous materials, although their role in commercial casualties is not well defined. JETTISONING The possible need to discharge oil to save a ship is recognized in the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78). MARPOL is in force in 78 nations, including the United States, yet U.S. statutes impose penalties or liability for oil discharges into the sea that otherwise would be permitted by the convention. The committee convened a symposium to assess the issues involved in the intentional discharge of oil during salvage operations as part of a study of U.S. salvage capability. The Symposium on the Purposeful Jettison of Petroleum Cargo, held February 23, 1993, addressed the need to clarify U.S. law concerning intentional discharges of cargoes to save ships and prevent loss of larger amounts of cargo, and the implications of advances in oil spill contingency planning, environmental data acquisition, and spill trajectory forecasting. Speakers addressed the historical context
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A Reassessment of the Marine Salvage Posture of the United States of jettison, environmental monitoring requirements, spill trajectory modeling technology, and the legal status of jettisoning under federal and state laws and international treaties. These presentations were followed by two panel discussions that focused on the jettisoning of oil as one option for response to an accident scenario. The report and recommendations on the purposeful jettison of petroleum cargo are attached in Appendix B (the proceedings of the symposium are published along with the report and recommendations, in a separate publication [NRC, 1994]). A number of themes and findings emerged from the symposium presentations, based on the committee's analysis. Speakers generally agreed that jettisoning of oil can be a valuable salvage tool and should be considered as an option, but one to be undertaken only when failure to take such action would likely result in loss of the vessel and release of the entire cargo. A deliberate discharge of a small volume of oil may be the only practical alternative in certain time-critical situations. Conventional alternatives such as lightering may prove impossible due to the timely availability of appropriate assisting vessels. Jettisoning has been rare in recent years, and contemplation of its use may be even more restricted by OPA 90, which introduced a new strict liability standard for damage from oil spills and established criminal sanctions for spillers. The symposium speakers' varying interpretations of OPA 90 reflect the ambiguities in federal and state oil pollution laws and confusion within the maritime community concerning the legal status of jettisoning (NRC, 1994). The Congress did not consider implications for salvage in enacting OPA 90, and the resulting uncertainty over liability clearly is a factor in the reluctance to jettison. Furthermore, an intentional discharge would violate the Federal Water Pollution Control Act (FWPCA), and state laws may impose additional liabilities. The direct way to protect salvors and other responders from liability may be to amend the National Contingency Plan (NCP) to clarify the procedure for deciding to jettison and to place the responsibility for authorizing such action solely on the federal on-scene coordinator (FOSC). As a practical matter, such an approach could obviate the need for Congress to amend OPA 90 or to await a judicial interpretation following an incident of jettisoning. This change would not entirely solve the problem, however, because OPA 90 does not preempt state law, and the salvor may be exposed to additional direct or indirect liability under general maritime law or various state laws.11 In any case, clarification of oil pollution laws undoubtedly will require further judicial or regulatory interpretations. Participants in the symposium panel discussions differed as to whether jettison would be an appropriate response to the given accident scenario. This disagreement demonstrates the difficulty and subjective nature of such decisions and suggests a need for standard, objective decision-making criteria. Such criteria could help expedite a process that inevitably involves multiple decision makers and special interests. Eight criteria were suggested as fundamental conditions that must exist before any oil is jettisoned: Time pressures demand immediate action. Deliberate discharge of the proposed amount of oil is likely to save the ship and the remaining cargo. All other salvage options, such as internal cargo transfer and lightering, have been exhausted or considered and rejected. Failure to jettison is likely to lead to loss of the ship and release of the remaining cargo. The principal issue is likely to be whether the ship will break 11 States have no jurisdiction (for this purpose) beyond the 3-mile territorial sea. States do assess penalties and attach liability, however, to those responsible for spills that originate outside the territorial sea and drift into it.
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A Reassessment of the Marine Salvage Posture of the United States up in bad weather, so information is needed concerning tides, currents, and approaching storms. The condition of the stranded vessel is such that she could be refloated following the jettison, and the remaining cargo saved. All necessary preparations have been made, including the marshaling of tugs, if available, to refloat the ship quickly after the discharge. The FOSC is monitoring the situation continuously to ensure that jettisoning remains the only viable option. Preparations are underway to clean up the discharged oil. Information is needed concerning spill trajectory, characteristics of the oil, physical environmental conditions, containment and recovery measures, geology of the impact zones, toxicological sensitivity of vulnerable species, and ecological characteristics of vulnerable areas. Finally, two general factors that may impede sound salvage practices were mentioned. Several speakers indicated that, even when jettisoning appears to be the correct technical decision, the FOSC in the decision-making exercise only recommends this action to superiors first (the district commander and ultimately the commandant). This places the issue in the political arena, as occurred in the Argo Merchant case. Under these circumstances, and without specific criteria on which to base a decision to jettison, public environmental concerns effectively may block action. Another issue is the uncertain legality of discharges that may occur during the normal course of salvage. A number of practices of salvors could be deemed a form of jettisoning, as they may result in a discernible discharge of oil. Examples include pumping out a flooded engine room, pressing down of dirty ballast tanks, expelling water from a flooded cargo or fuel tank, using compressed air to press out damaged tanks, displacing oily water with buoyant material, and operating skimmers (which, in separating oil and water, may discharge small quantities of oil). Such actions result in minimal pollution and likely would be part of an approved plan of action; yet, regardless of their benefit, these incidental discharges may violate the FWPCA. Findings Jettisoning of petroleum cargo can be a valuable salvage tool, but should be considered as an option to be undertaken only when failure to take such action might and probably would result in loss of the stranded vessel and release of the entire cargo. However, a number of unresolved issues tend to inhibit the reasoned use of jettisoning. In the committee's judgment, these issues should be resolved before a marine casualty occurs where a deliberate discharge of oil may be warranted. Otherwise, in the absence of legal certainty, a salvor may reject the jettison option arbitrarily, even when it may be the only means available to avoid a catastrophic spill. Marine pollution response increasingly is being undertaken under a decision-making framework called the "Unified Command System" (UCS). The UCS is an incident command partnership that ensures consultation and coordination among principal parties; in the case of marine casualties and potential jettison situations, the principal parties are the federal government acting through the on-scene coordinator; the state, acting through a predesignated representative; and the owner or other predesignated responsible individual. The UCS ensures, at a minimum, consultation among the parties before major decisions are made. It is the premise of the committee's recommendations that a decision to jettison would be made under the UCS.
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A Reassessment of the Marine Salvage Posture of the United States SAFE HAVENS A "safe haven," in the context of vessel salvage, is defined as a place of refuge where conditions are suitable for damage surveys and emergency repairs. Such refuge would entail shelter from winds, currents, and waves; adequate bottom conditions to provide a suitable anchorage; well-charted approaches; good beaching ground; and the potential for channel blockage. Hundreds of locations along the U.S. coast are acceptable safe havens, and one or more lie within reasonable reach of virtually any casualty. However, if a stricken vessel is in danger of spilling a hazardous cargo or fuel oil, if free flow of waterway traffic could be impaired, and if life-saving operations could be accomplished at sea, it appears unlikely that the Coast Guard or other federal, state, or local officials would permit the stricken vessel to be moved to a safe haven for repairs. This dilemma stems in part from the fact that conditions for suitable safe havens often also provide key habitats for biological populations, thereby increasing the risk of serious environmental damage should cargo be spilled. Only when a casualty occurs in an extremely sensitive area at the outset is movement to a safe haven likely to be approved. The 1982 NRC report on marine salvage recognized the possibility that a salvor's request to move a ship to a safe haven might be problematic on environmental grounds. The 1982 committee pointed out that there are objective methods for evaluating relative environmental sensitivity and selecting among alternative sites to minimize environmental damage. That committee recommended that the Coast Guard develop criteria for safe havens and identify suitable sites, and that the regional response teams establish procedures to make safe havens available when needed. No significant action was taken on those recommendations, and the issue has become, if anything, even more contentious in the years since the 1982 report. There have been only a few requests for access to safe havens in the past decade. Probably the most notable was the safe haven afforded the Exxon Valdez on its removal from Bligh Reef in April 1989. At the request of Exxon Corporation, the refloated vessel was moved so that temporary repairs could be undertaken before transit to the West Coast for reconstruction of the extensively damaged hull. In that instance, despite considerable cleaning of the ship's cargo holds, West Coast ports were reluctant to accept the vessel. Extensive negotiations were necessary before the ship was finally accepted in San Diego. In October 1984, owners of the Puerto Rican were denied permission to bring the vessel into San Francisco Bay following an onboard explosion because oil was leaking from the vessel. While the ship was being towed out to sea, the stern section of the vessel parted from the bow and sank in 2,400 feet of water, resulting in chronic pollution for several months. When the bow section was determined to be structurally sound and free of further leakage, it was towed into San Francisco Bay, where 60,000 barrels of oil were offloaded. The safe havens issue is not unique to the United States. It was addressed in the International Salvage Convention of 1989: Article 11. Cooperation. A State Party shall, whenever regulating or deciding upon matters relating to salvage operations such as admittance to ports of vessels in distress or the provision of facilities to salvors, take into account the need for cooperation between salvors, other interested parties and public authorities in order to ensure the efficient and successful performance of salvage operations for the purpose of saving life or property as well as preventing damage to the environment in general. Few Coast Guard districts have formal policies regarding the approval of safe havens, and it appears that in almost all cases the decision to relocate a disabled ship
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A Reassessment of the Marine Salvage Posture of the United States that poses a potential hazard to the environment will be ad hoc and based on a complex set of factors. Interestingly, the one exception may be in Prince William Sound, where the policy is for the captain of the port (COTP) to designate safe havens as deemed necessary to minimize pollution effects and human hazards. While some coordination with other agencies is necessary, prompt and predictable action can be expected in Prince William Sound, Alaska, due to predesignation of safe havens. Unfortunately, denials of safe haven can be expected along most of the U.S. coastline. The lack of action on the part of the Coast Guard since the 1982 NRC report leaves the industry with few contingency planning options. The Coast Guard continues to rely on an after-the-fact analysis and determination by the COTP before considering the offering of safe haven. Moreover, if a vessel is losing oil, the COTP is likely to deny entrance, even though refusal may lead to a larger environmental catastrophe. The issue facing the COTP is potential pollution of one area in order to protect another. Without preplanning and analyzing alternatives, no or few COTPs can make that trade-off decision. To safely address the safe haven issue and provide the COTP with the necessary decision tools and information for emergency situations, a formal analysis program, such as the one for making a decision to use oil dispersants, is needed, with predefined areas for safe havens such as the tiered dispersant areas. Findings Predesignated safe havens do not exist within the United States, with the exception of Prince William Sound. Decisions concerning whether to provide safe havens are made on an ad hoc basis by the COTP in each case. The process for providing safe havens is not widely understood. As a result, potential safe havens may be sought following casualties when, in fact, none can be offered; or, a safe haven will not be requested even though it should be. The lack of safe havens impedes traditional salvage procedures as a vessel probably cannot be considered "saved" until it is safely in port and secured. The absence of predesignated safe havens increases the risk of catastrophic outcomes having environmental consequences from marine vessel casualties. SALVAGE READINESS OF VESSEL AND CREW The concept of "salvage friendly" vessel design and training to ensure that a vessel and crew are well prepared and equipped to handle emergency situations has been adopted by some segments of the maritime community over the past 12 years. This approach, which initially focused on the facilitation of rescue towing, is expanding to embrace other aspects of vessel readiness, such as transfer piping between cargo tanks and empty spaces in a tanker. A salvage friendly approach to vessel design and crew training can have a significant impact on the outcome of salvage operations. In fact, it can easily make the difference between success and failure. In July 1981, the Oil Companies International Marine Forum (OCIMF) published Recommendations on Equipment for the Towing of Disabled Tankers. In November 1983, the International Maritime Organization (IMO) adopted Resolution A.535(13), Recommendations on Emergency Towing Requirements for Tankers. The purpose of the IMO recommendations is to facilitate salvage and emergency towing operations on new and existing tankers, primarily to reduce the risk of pollution. The recommendation recognizes the need to harmonize the system components: tug or towing vessel, towline, pennant, chafing chain, fairlead, and towing gear connection or strongpoint on the vessel to be towed. The system should facilitate the ease of connection and be capable of being connected and released onboard the towed vessel in
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A Reassessment of the Marine Salvage Posture of the United States the absence of main power. The system should be standardized at the point of connection of the towline to the chafing chain. Since the IMO resolution was published, sentiment has grow in favor of requiring tankers to have not only the towing component, but also means of rapidly deploying the equipment by a minimum number of persons aboard a vessel that has lost power. The IMO Subcommittee on Safety of Navigation is revising the resolution. Vessels transiting Prince William Sound have been required to carry an emergency towing package that can be readily deployed. The towing systems have been implemented in various ways, and the time required for deployment ranges from 15 minutes to over three hours if vessel power is lost, according to the Disabled Tanker Towing Study Group (1993). That group also concluded that designs for quick deployment (15 minutes or less, with or without power) are necessary if these systems are to be of significant help in an emergency. In addition, the systems should be deployable by as few as two crew members, as most of the crew will be concerned with other aspects of the casualty. While the focus to date has been on vessels carrying oil as cargo, emergency towing arrangements should also be considered for all vessels above a certain size. This strategy would address environmental concerns related to hazardous materials and the substantial amounts of fuel carried aboard cargo ships, as well as crew and passenger safety considerations. Such a safety measure could be applied through the development and promulgation of an international standard under the auspices of IMO. Although the advantages of built-in equipment may be most obvious in cases of rescue towing, vessel modifications will also simplify a salvor's task. For example, cargo tank vent piping could be modified to provide standardized, valved, flanged connections that could be used in an emergency to connect the salvor's hoses (Stiehl, 1993). Although making a vessel salvage friendly through structural and mechanical modifications is extremely helpful, crew training must not be ignored. Familiarity with salvage processes and procedures (described, for example, in Peril at Sea and Salvage, A Guide for Masters [International Chamber of Shipping and OCIMF, 1992]) can significantly improve the effectiveness of initial actions in emergencies. At least one major West Coast tanker owner, in concert with its salvage contractors, has developed programs to train personnel to react proactively in emergencies in a manner consistent with the salvage contractors' practices (Stiehl, 1993). The salvage contractors provided training and resources and specifications for structural modifications to vessels to make them compatible with the salvors' equipment. Despite such positive steps, numerous vessels are still not in compliance with IMO Resolution A.535(13). The scarcity of salvage-friendly vessels, despite the recommendations made over 10 years ago, is due to the voluntary nature of compliance with IMO resolutions. A few regulations, such as those stemming from the TransAlaska Pipeline Act (P.L. 93-153), have required compliance, but the voluntary regime is prevalent internationally. Increases in liability damages may prove to be strong incentives for compliance in the near future. Findings The development of salvage-friendly vessels and crews can be a positive element in preventing a casualty or mitigating its effects in an emergency situation. There is considerable history of salvage-friendly modifications to vessels, notably tankers. These alterations have been made primarily to facilitate rescue towing, but efforts are being expanded to include alteration of shipboard piping systems for the internal transfer of liquid cargo from damaged tanks.
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A Reassessment of the Marine Salvage Posture of the United States Compliance with recommendations concerning salvage-related modifications is largely voluntary, and unfortunately there are still many tank vessels that have not been modified. There are no national or international recommendations for vessels other than tankers. Consequently, dry cargo and passenger vessels are seldom if ever fitted with emergency towing equipment. THE NAVY'S CONTRIBUTION TO THE NATIONAL SALVAGE CAPABILITY In addition to providing support for the U.S. Navy, the Navy fleet salvage resources and the Naval Sea Systems Command are permitted to provide back-up salvage capability for the private sector should available commercial resources be insufficient to handle a casualty. During the past 10 years, there have been few, if any, marine casualties in U.S. waters where commercial salvage equipment and expertise were insufficient. It can be assumed, therefore, that calls upon the Navy assist in or take over the salvage of a commercial vessel will continue to be infrequent. The 1992 International Salvage Industry Survey states that international salvage resources are in serious decline, leading to the disappearance of a number of long-established salvage companies. A primary cause of the decline is "fierce competition from nondedicated resources, aggravated by the search for low-cost dry and wet salvage services by shipowners, insurers, and P&I Clubs" (Tecnitas, 1992). It appears that current salvage resources have been sufficient to handle casualties in the last decade or so. However, the disappearance of traditional U.S. salvors and some of their equipment, particularly the dedicated salvage tug, is also a consideration. If an accident occurs where salvage resources are unavailable or inadequate, and Navy assets are available, then the Navy could be called upon to participate in commercial salvage operations. Dedicated salvage vessels are expensive to build and maintain on a standby basis. Cutbacks in military resources following the end of the Cold War are reducing the Navy fleet's salvage assets, and the Navy's salvage force of the future will be tailored to a different world situation. Consistent with the Secretary of the Navy's recent white paper, . . .From the Sea, the Naval force will focus on operations in littoral waters.12 In such operations, particularly in the two-region conflict contingency projected by U.S. military planners, Naval salvage forces become even more important than they are in a blue water (open sea) environment. However, it is unlikely that the projected Naval fleet salvage force level of 14 ships (seven T-ATFs, four ARS 50s, and three ATSs)13 will survive into the next century. A reduction of some four to six T-ATFs is possible. The five remaining World War II vintage salvage tugs (ARS 38 class) will be decommissioned by the end of fiscal year 1994. These ships are expensive to maintain and operate and with 3,000 SHP have insufficient power to be of much use in the rescue of large, modern commercial ships. In military service, they are manned by 6 officers and 97 enlisted men. These vessels are not adaptable to commercial salvage service. The T-ATF 166 class of fleet ocean tugs, now operated by the civilian crews of the Military Sealift Command, are the most suitable Navy vessels for supplementing commercial resources. They have 7,000 SHP and can be operated with commercial-size crews. Their utility as salvage ships in their present configuration is limited, as they lack installed salvage equipment and lifting capability, and their crews receive 12 The Navy's focus is shifting from high seas "blue water" operations to "power projection ashore." 13 The Navy classifies its ships according to their capabilities. The ARS is equipped for rescue salvage, the ATS for towing and salvage, and the T-ATF for towing and firefighting.
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A Reassessment of the Marine Salvage Posture of the United States only limited salvage training. T-ATFs are designed, however, to accept portable salvage and diving systems as well as numerous specialized military and commercial oceanographic systems, and they can berth and feed 14 persons in addition to their normal crew. Navy SUPSALV maintains an inventory of salvage equipment in its worldwide network of Emergency Ship Salvage Material (ESSM) facilities. This equipment is designed and palletized for transport to and loading aboard the T-ATFs. Fleet Mobile Diving and Salvage Units (MDSUs) maintain Fly-away Dive Systems (FADS) and salvage equipment ready for deployment aboard T-ATFs. The T-ATF is versatile, and when outfitted to meet the needs of a specific operation, it can fulfill the mission of several specialized ships in salvage, deep sea diving, deep ocean search, ROV operations, ocean towing, or firefighting. Presently, three T-ATFs are based in Norfolk, Virginia, two in San Diego, California, and one each in Guam and Singapore. Two or three T-ATF 166-class ships, strategically located and properly outfitted and backed up by ESSM facilities, could restore much of the lost traditional salvage capability along the coasts of the continental United States. One method by which these vessels could be made available for commercial work would be to provide them on a bareboat charter basis to commercial operators, who would keep them on standby to supplement existing commercial assets while also performing Navy work within a designated area. Alternatively, private salvage companies could maintain the vessels, in the manner of the two commercial vessels based on the West Coast, with a skeleton crew backed up by a full crew that can be assembled in two hours. In either case, the contract could be written to allow immediate redelivery to the Navy in the event of a national emergency with or without the civilian crew. This approach would require legislative and/or regulatory changes and the consent of both the Navy and existing commercial operators. The Navy scaled back and ultimately abandoned similar commercial arrangements in the 1970s due to escalating costs and continued pressure on limited budgets. (A major cause of the problem then was the decline in commercial salvage business, which had been used to offset out-of-pocket costs to the Navy. That situation has not changed and is probably worse now from a salvage business viewpoint, although it is much better from the shipowner's and the environmental perspective.) For such arrangements to be viable now, nondiscretionary Congressional direction and a reliable, long-term source of funding would be required. Absent such a commitment from the Congress and the administration, any improvement on the status quo is unlikely. The Navy salvage community will continue to compete with other important defense programs for funding. Unless the legislative and executive leadership take a strong stand on this issue, it is likely that Navy salvage assets will be reduced further. Moreover, without a national commitment, it is unlikely that the Navy will be provided the resources for increased salvage protection in areas beyond its own operating venues. Findings The Navy has significant floating, dedicated salvage assets that are not generally available to the private sector. Some of these assets are being phased out as the Navy alters its salvage mission following the end of the Cold War. Surplus assets, particularly the T-ATF class of ships, if operated by the private sector and strategically deployed, could go a long way to restoring the traditional salvage capability of the United States, particularly in rescue towing. The operation of these vessels by the private sector would require substantial subsidy, as it has been demonstrated in the United States and elsewhere that salvage revenues cannot cover the costs of operating and maintaining the vessels and their crews. The excess costs could be covered, as they were in the past, through the Salvage Facilities Act, and the
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A Reassessment of the Marine Salvage Posture of the United States plan could be implemented through the arrangements in place for Navy contracting for commercial salvage services. Nondiscretionary Congressional direction and a long-term source of funding would have to be obtained before this approach could be considered.
Representative terms from entire chapter: