What Constitutes Timely Reporting To The Coast Guard?

Several recent MOPS cases have brought to light the issue of what constitutes timely reporting to the Coast Guard of a reportable marine casualty. (What constitutes a reportable marine casualty is beyond the scope of this article -see 46 CFR s. 4.05-1 (a) (1) - (8) where reportable casualties are specified.) Coast Guard regulations contain two separate reporting requirements.
The first requirement, found at46 CFR s. 4.05-1(a), obligates the owner, agent, master, operator, or person in charge of a vessel involved in a reportable marine casualty to notify the nearest Coast Guard Sector Office, Marine Inspection Office, or Coast Guard Group Office "immediately after the addressing of resultant safety concerns".  The second requirement, found at 46 CFR s. 4.05-10 (a), obligates the owner, agent, master, operator, or person in charge to deliver to a Coast Guard Sector Office or Marine Inspection Office a written report, on a Form CG-2692, of any casualty required to be reported by s. 4.05-1, within five days.  Although the cited regulations create obligations to make two separate reports, there is an interconnection between the two separate obligations. In an often-overlooked section of the regulations, 46 CFR s. 4.05-10 (b) states that, "If filed without delay after the occurrence of the marine casualty" the report required by s. 4.05-10 (a) (i.e. - the written CG 2692 report) "suffices as the notice required by s. 4.05-1 (a)." 

Failure on the part of a mariner to make either report in a timely fashion can subject the mariner's license to a separate Coast Guard charge of misconduct, apart from whatever other charges, if any, might arise out of the occurrence of the casualty itself.  If you are ever called upon to defend aMOPS insured against a charge of failure to make a timely submission of either required report, here are some cases and principles which may be of assistance to you.

Timely Reporting To The Coast Guard

A REPORT TO THE OWNER'S REPRESENTATIVE MAY SUFFICE
USCG v. George V. Lawrence, (App. Dec. 2225) (1980) (1980 WL 338514)   

At 9:40 AM on January 14, 1979, the M/V SAM LAUD allided with a moored vessel while proceeding inbound in the Cuyahoga River in Cleveland. The moored vessel was laid up and unmanned; the allision was slight and no one was injured. The SAM LAUD continued its voyage upriver and moored at 2:00 PM the same day. After the vessel was safely moored, the captain, who was the respondent in this license action, notified an employee of his vessel's owners about the allision. The employee told the captain that he would notify the Coast Guard and the owners of the other vessel. The captain took no further action. The following day, at 3:00 PM, after the SAM LAUD had departed, a different employee of the vessel's owners finally notified the Coast Guard of the casualty. At the next port, the SAM LAUD's captain mailed a written 2692 to the Coast Guard; it was posted January 17, 3 days after the casualty, and received January22, 8 days after.

The Coast Guard charged the captain with misconduct for failure to give notice to the Coast Guard of the casualty "as soon as possible" in violation of 46 CFR s. 4.05-1. The ALJ found the Coast Guard charge proved and entered an admonition. The captain appealed to the Vice Commandant. The Vice Commandant vacated the ALJ's findings, and dismissed the charge. In doing so, the Vice Commandant noted that the actions of the captain in notifying the owner's agent of the casualty immediately after docking, and eliciting from him an assurance that he would notify the Coast Guard, was sufficient to satisfy the requirement of the regulation, which did allow for the submission of the required report by the vessel's owner, agent or operator.

FILING A CG 2692 "WITHOUT DELAY" MAY SUFFICE
USCG v. David E. Bracken, (App. Dec. 2523) (1991) (1991 WL 11007455)

The respondent was captain of the tug and barge flotilla M/V BELCHER PORT EVERGLADES and barge BELCHER 101, which grounded without damage while proceeding inbound through Tampa Bay at 2:05 PM on January 8, 1990. The respondent was able to refloat the flotilla quickly and proceeded to tie up at Port Manatee later in the afternoon.  Upon arrival, the captain notified his superior of the grounding; subsequently a senior vice president of the owning company notified the Coast Guard at midday on January 11, three days after the grounding incident. On the same day, the captain appeared at the Coast Guard Marine Safety Office and personally filed a written CG 2692 report of the casualty.

The Coast Guard charged the captain with misconduct for violation of 46 CFR s. 4.05-1 for failure to give notice of a marine casualty "as soon as possible". The ALJ found the Coast Guard charge proved and suspended the captain's license for one month. On appeal, the Vice Commandant vacated the ALJ's finding and dismissed the charge.  In doing so, the Vice Commandant reasoned that, although the captain had not given notice as required by s. 4.05-1, he had nonetheless met the requirements of s. 4.05-10, and that excused the earlier violation because s. 4.05-10 states: "If (the USCG Form 2692) (is) filed without delay after the occurrence of the marine casualty, the report required by paragraph (a)  of this section suffices as the notice required by s. 4.05-1 (a)."  The Vice Commandant noted that the captain had filed the 2692 three days and seventeen hours after the casualty, and based on that, he was unable to conclude that the captain had failed to meet the "without delay" requirement of s. 4.05-10 (b); and because of that, the 2692 filing was a per se satisfaction of the notification requirements of s. 4.05-1 (a).

REPORTING ON THE SAME DAY MAY SATISFY THE "IMMEDIATELY AFTER" REQUIREMENT OF s. 4.05-1 (a)
USCG v. John W. Schuiling (App. Dec. 2341) (1982)
Affirmed, sub nom Commandant v. John W. Schuiling, 4 NTSB 1977 (1984), NTSB Order No. EM-109, WL 62153

The respondent in this case was the chief engineer of the SS JACKSONVILLE.  On October 8, 1982, while the ship was moored in Baltimore, Maryland, the "main propulsion motor" was flooded by one and a half feet of bilge water and was grounded and rendered inoperative. The Coast Guard was not notified. The bilges were drained and the motor was repaired, and satisfactorily tested on October 10. Again the Coast Guard was not notified, and was accordingly not given the opportunity to witness the testing. On October 12, while the ship was at sea, the main propulsion unit tripped its ground relay and phase balance relay, resulting in grounding of all three of its phases, and a further loss of the ship's main propulsion. The ship was towed into Wilmington, N.C. on October 13; no report was made to the Coast Guard until two days later, October 15. When a Coast Guard representative visited the vessel on October 15 to investigate the casualty, it was the first time that the Coast Guard learned of the original October 8 grounding of the main motor. 

The issue addressed by the appeal to the Vice Commandant was whether the chief engineer's October 15 report to the Coast Guard, coming as it did two days after the vessel's arrival in port on October 13, complied with an "immediately after" requirement found in a parallel Coast Guard regulation governing engine repairs (46 CFR s. 97.30-5).  It probably goes without saying that, on these facts, the Commandant sustained the ALJ's sanction, which remarkably enough, was only an admonition. But of interest to us in the decision is the statement by the Vice Commandant, at page 12 of the decision which accompanies the NTSB report, that "In the circumstances of this case where, in the very least, a telephone call to the Coast Guard office in Wilmington could have been made, 'immediately' means the very same day the vessel arrived in port. Thus, notification on October 13 was required."

NOTES

(1) Although arguably the latter statement in the SCHUILING decision is dicta, reference to this NTSB opinion and its accompanying Vice Commandant decision has already resulted in the Coast Guard withdrawing a threatened letter of warning against a MOPS insured who did not report a casualty "immediately" upon arriving in port, but did make a personal report later in the same afternoon on a visit to the Coast Guard office for another purpose.     

(2) You should be aware, in relying upon these cases before the Coast Guard or an ALJ, that it appears that the language of s. 4.05-1 was slightly different in the first two cases. The BRACKEN decision, dating from 1991, quotes s. 4.05-1 as stating: "The owner, agent, master or person in charge of a vessel involved in a marine casualty shall give notice AS SOON AS POSSIBLE to the nearest Coast Guard Marine safety or Marine Inspection Office..."  The LAWRENCE decision, dating from 1980, also refers to an "as soon as possible" requirement. Thatwording in both of these cases is of course different than the"Immediately after addressing resultant safety concerns" language found in the current version of s. 4.05-1(a). Note, however, that the NTSB SCHUILING decision and case included in its report does revolve around "immediately" language found in another part of the regulations relating to engine testing. In any event, we believe that the principles and reasoning articulated in these cases ought to be sufficiently compelling and persuasive to overcome any objections about the relatively minor changes to the wording of the regulations.    

We would be interested in hearing about any further experiences you may have had defending MOPS insured against charges of untimely reporting to the Coast Guard.